IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Hf  ii£    12.0 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historicai  lyiicroreproductions  /  Institut  caradien  de  microreproductions  historiques 


i 


Tachnical  and  Bibliographic  IVotat/Notaa  tachniquas  at  bibiiographiquaa 


Tha  Inatituta  hat  attamptad  to  obtain  tlia  baat 
original  copy  availabia  for  filming.  Faaturaa  of  thia 
copy  wliich  may  ba  bibiiograpliically  uniqua, 
which  may  altar  any  of  tha  imagaa  in  tha 
raproduction,  or  which  may  aignificantly  changa 
tha  uaual  mathod  of  filming,  ara  chacliad  balow. 


D 


D 


D 


D 


Colourad  covara/ 
Couvartura  da  coulaur 


I     I   Covara  damagad/ 


Couvartura  andommagte 

Covara  raatorad  and/or  laminatad/ 
Couvartura  raataurte  at/ou  paliiculte 

Covar  titia  miaaing/ 

La  titra  da  couvartura  manqua 

Colourad  mapa/ 

Cartaa  gtegraphiquaa  an  coulaur 

Colourad  inic  (i.a.  othar  than  blua  or  black)/ 
Encra  da  coulaur  (i.a.  autra  qua  biaua  ou  noira) 

Colourad  piataa  and/or  iliuatrationa/ 
Planchaa  at/ou  iiiuatratlons  an  coulaur 


Bound  with  othar  matarial/ 
RalM  avac  d'autraa  documanta 


0   Tight  binding  may  cauaa  ahadowa  or  diatortion 
along  Intarior  margin/ 

Larellura  aarrte  paut  cauaar  da  i'ombra  ou  da  la 
diatortion  la  long  da  la  marga  intiriaura 


Blank  laavaa  addad  during  raatoration  may 
appaar  within  tha  taxt.  Whanavar  poaaibia,  thaaa 
hava  baan  omittad  from  filming/ 
11  aa  paut  qua  cartainaa  pagaa  bianchaa  aJoutAaa 
lora  d'una  raatauration  apparaiaaant  dana  la  taxta, 
mala,  ioraqua  cala  Atait  poaaibia,  caa  pagaa  n'ont 
paa  «t«  filmAaa. 

Additional  commanta:/ 
Commantairaa  aupplAmantalraa: 


L'Inatitut  a  microfilm^  la  maiilaur  axampiaira 
qu'ii  iui  a  it6  poaaibia  da  sa  procurer.  Laa  d^taila 
da  cat  axampiaira  qui  aont  paut-Atra  uniquaa  du 
point  da  vua  bibliographiqua,  qui  pauvant  modifiar 
una  imaga  raproduite,  ou  qui  pauvant  axigar  una 
modification  dana  la  mAthoda  normala  da  fiimaga 
aont  indiqute  ci-daaaoua. 


□  Colourad  pagaa/ 
Pagaa  da  coulaur 


n 

D 
D 

n 
0 


n 


Pagaa  damagad/ 
Pagaa  andommagtea 

Pagaa  raatorad  and/or  laminatad/ 
Pagaa  raataurtea  at/ou  paliicultea 

Pagaa  diacoiourad,  atainad  or  foxad/ 
Pagaa  dAcolorAaa,  tachatAaa  ou  piqutea 

Pagaa  datachad/ 
Pagaa  dAtachtea 

Showthrough/ 
Tranaparanca 


r~n    Quality  of  print  variaa/ 


Quality  InAgala  da  i'impraaaion 

Includaa  auppiamantary  matarial/ 
Comprand  du  material  auppMmantaira 

Only  adition  availabia/ 
Saula  Mitlon  diaponibia 


Pagaa  wholly  or  partially  obacurad  by  arrata 
alipa,  tiaauaa,  ate,  hava  baan  rafiimad  to 
anaura  tha  baat  poaaibia  imaga/ 
Laa  pagaa  totaiamant  ou  partialiamant 
obacurciaa  par  un  faulllat  d'arrata,  una  palura, 
ate,  ont  M  fiimiaa  A  nouvaau  da  fapon  A 
obtanir  la  maillaura  imaga  poaaibia. 


Thi 
to 


Th 
po 
of 
filr 


Ori 
ba 
th< 
sio 
oti 
fin 
sic 
or 


Th 
Shi 
Til 
w» 

Ml 
dif 
en 
ba 
rig 
re( 
m( 


Thia  itam  la  fllmad  at  tha  reduction  ratio  checked  below/ 


( 

Cede 
10X 

wum 

enteetfil 

m*  au  taux  da 
14X 

rMu 

otion 
18X 

indii 

|u4g 

l-dei 

aoua 
2ZX 

28X 

30X 

7 

12X 

16X                          20X                           24X                          2tX                          32X 

The  copy  filmed  here  hat  been  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'exempiaira  filmi  fut  raproduit  grAca  k  la 
gAnirosit*  da: 

Law  Society  of  Upper  Canada 
Great  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  icaeping  with  the 
filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  bacit  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^^  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

i\Aaps.  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Lea  Imagaa  suivantas  ont  4t4  raproduitas  avac  la 
plus  grand  soln,  compta  tanu  da  la  condition  at 
da  la  nattatA  da  raxamplaira  film*,  at  an 
conformity  avac  las  conditions  du  contrat  da 
filmaga. 

Lea  axemplairaa  originaux  dont  la  couvarture  en 
papier  eat  ImprimAa  sont  iiimai»  en  commandant 
par  la  premier  plat  at  en  tarmlnant  soit  par  la 
darnlAra  page  qui  comporta  una  ampreinta 
d'impression  ou  d'lllustratlon,  soit  par  la  second 
plat,  salon  la  cas.  Tous  lea  autres  axemplalras 
originaux  sont  fllmfo  en  commenpant  par  la 
pramlira  page  qui  comporta  una  ampreinte 
d'impression  ou  d'illustratlon  at  en  terminant  par 
la  darnlAre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivanta  apparaftra  sur  la 
darnlAre  Image  da  cheque  microfiche,  selon  le 
cas:  le  symbols  ^»-  slgnifie  "A  SUIVRE",  le 
symbols  V  slgnifie  "FIN". 

Las  cartes,  planches,  tableaux,  etc.,  peuvant  Atre 
filmAs  A  des  taux  da  rMuetion  diffArents. 
Lorsque  la  document  est  trop  grand  pour  Atra 
raproduit  an  un  saul  cllchA,  11  est  fllmA  i  partir 
da  Tangle  aupAriaur  gauche,  da  gauche  A  droite, 
et  da  haut  an  baa,  an  pranant  la  nombre 
d'imagea  nAeassalra.  Lee  diagrammas  suivants 
illustrent  la  mAthoda. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

I^SJ. 


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"^'*'''**— '*ttWaBMHIH| 


I^SJ. 


AMERICAN 


CRIMINAL   REPORTS 


A  SKIUKS    DKSIGNKl)  TO  CONTAIN  THK  LATEST 

AXl)    MOST    IMPORTANT  X (^ 

CRIMINAL    CASES 

UETBKMINBD  IN 

THK     FEDERAL    AND    STATE     COURTS    IN    THE 

UNITED    STATES 

AS  WEM,  AS 

SELECTED    CASES 

IMPORTANT  TO  AMKRICAN  IjAWYERS 

FROM    THE   ENGLISH,  IRISH,  SCOTCH   AND  CANADIAN 

LAW  REPORTS 


NOTES    AND    REFERENCES 

VOL.    XIII 

KDITED    BY 

JOHN    F.  GEETING 

l^ECTUREIl  AT  THE    Il-I.IN'OIS  COLr.KOE  OP  LAW,  THK  f 'HICAQO-KbNT 

t'oi,i,KOK  OF  Law  and  the  John  Marshall  Law  School 

AND 

HENRY    C.  GEETING 

Lectukku  at  the  Chicaoo-Kknt  College  of  Law 


CHICAGO 

CALLACillAN    AND    COMPANY 
1907 


r  '1  «>■■ 


i 

s 


COPVBIGHT,    UtO" 
BY 

CALLAGHAN  &  COMPANY 


JANlo  ..:. 


PREFACE 


The  present  volume  contains  one  hundred  and  thirty-four 
principal  cases  and  thirty-five  cases  given  in  full  in  the  notes. 

This  volume  pursues  the  plan  announced  in  volume  twelve, 
and  covers  the  same  period;  but  takes  for  its  general  topics: 
Arrests,  Assaults,  Carrying  weapons,  Deadly  weapons,  Homicide, 
In'aney,  Lottei'y,  Trials  and  Variance.  In  order  that  the  work 
may  be  of  especial  value  to  those  members  of  the  profession  not 
favored  with  access  to  large  libraries,  and  a  convenience  to  all, 
by  having  the  authorities,  in  their  original  language,  collected  in 
one  volume,  we  have  copiously  quoted  from  eminent  law  writers 
and  reproduced  a  number  of  old  English  cases.  In  the  next  vol- 
ume, now  in  preparation,  many  old  English  cases  will  appear  in 
the  notes,  shedding  light  on  various  phases  of  the  law  relating  to 
Larceny,  Embezzlement,  Burglary,  Robbery,  etc. 

Although  in  this,  and  in  the  preceding  volume,  considerable 
space  has  been  given  to  the  subject  of  "Trials,"  several  interest- 
ing cases  on  that  subject  have  been  left  out.  They  will,  how- 
ever, appear  in  the  next  volume. 


m 


ni 


TABLE  OF  CASES  EEPOETED. 


Retercuces  are  to  pages. 


A. 


Allbright  v.  Territory  (Okla.) 

Alvarez  v.  State  (Texas) 

Alyea  v.  State   (Neb.) 

Araerson,  Franklin  v.  (Ga.).. 
Ames,  Champion  v.  (U.  S.) .  • 
Anderson  V.  State  (Fla.).... 
Anderson  v.  State  (Texas)... 
Atkins  V.  State  (Texas) 

B. 

Bailey  v.  Commonwealth  (Ky.) 

Barnes  V.  State   (Texas) 

Barnes  V.  State   (Texas) 

Battle,  State  v.  (N.  C.) 

Beard,  Tillman  v.   (Mich.),.. 

Biggers   v.   State    ( Ga. ) 

Black  V.  State   (Texas) 

Boyd  V.  Commonwealth  (Ky.) 

Brickey,  hi  re  (Idaho) 

Eridgewater  v.  State  (Ind.).. 

Brooks  V.  State   (Ga.) 

Brown,   State  v.   (N.  C.) 

Brown  v.  State  (Texas) 


233 
137 
101 
1 
561 
201 
104 
135 


61R 
111 
191 
186 
7 
604 
192 
703 
217 
270 
47 
220 
118 


c. 

Caddell   v.   State   (Texas) 103 

Cartwright,  Petrie  v.  (Ky.) . . .  72 
Champion  v.  Ames  (U.  S.)...  561 

Climle,  State  V.  (N.  D.) 211 

Cobb,  State  v.   (S.  C.) 262 

Cole,  People  v.   (Cal.) 420 

Commonwealth,       Bailey      v. 

(Ky.)     618 

Commonwealth,  Boyd  v.  (Ky.)  703 
Commonwealth,       Cosby       v. 

(Ky.)    230 


Montgomery 


Morrison 


Oldham     v. 


Commonwealth,      Gordon     v. 

(Ky.)    127 

Commonwealth,      Hibler      v. 

(Ky.)    416 

Commonwealth,     Howard     v. 

(Ky.)     533 

Commonwealth       v.      Krause 

(Pa.)     255 

Commonwealth, 

V.   (Va.)   .... 
Commonwealth 

(Pa.)     

Commonwealth, 

(Ky.)    

Commonwealth,      Powers      v. 

(Ky.)    

Commonwealth,  Ross  v.  (Ky.) 
Commonwealth     v.     Zorambo 

(Pa.)     

Cosby  V.  Commonwealth  (Ky.) 

Crosky  v.  State  (Fla.) 682 

Crotts,  State  v.   (Wash.) 647 

Cunningham  v.  People  (111.).  653 


D. 


Davis  V.  State  (Miss.) 106 

Davis  V.   State    (Texas) 1C9 

Delegal  v.  State  (Ga.) 317 

Dover  v.  State  (Ga.) 330 

Drummer  v.  State  (Fla) 694 

Drury  v.  Territory  (Okla.)...  300 

E. 

Ervlngton  v.  People   (111.)...  189 

Erwin  v.  State  (Ga.) 707 

Evans  v.  State  (Texas) 140 


156 

247 

615 

464 
294 

392 
230 


VI 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pages. 


F. 


state  (Texas).... 
United  States  (U. 


425 

695 
1 

90 
129 


Francis  v. 
Francis  v. 
S.) 

Franklin  v.  Amerson  (Ga.)... 

Fuller  V.  State  (Texas) 

Furlough  V.  State  (Texas)... 

G. 

Gallagher,  People  v.  (Chi.)...  612 

Gee  V.  State  (Miss. ) 402 

George,  State  v.  (Del.) 55C 

Gillespie  V.  State  (Ark.) 123 

Goode,  State  v.  (N.  C.) 178 

Goode  V.  State  (Texas) 113 

Gordon      v.      Commonwealth 

(Ky.)  127 

Gottshall,  People  v.  (Mich.) . .  630 

Gray  v.  State  (Fla.) 205 

Graybill  v.  State  (Texas) ....  170 

H. 

Hardy  v.  State  (Ga.) 689 

Hibler      v.      Commonwealth 

(Ky.)    416 

Hlte  V.  People  (Cal.) 173 

Hogan  V.  State  (Fla.) 196 

Howard     v.     Commonwealth 

(Ky.)    533 

Hunt  V.  State  (R.  I.) 92 

I. 

In  re  Brickey  (Idaho)   217 

Irwin,  State  V.  (Idaho) 620 

Irwin  V.  State  (Ga.) 710 

J. 

Jacobs  V.  State  (Fla.) 712 

Jay  V.  State  (Texas) 12C 

Johnson  v.  State  (Wyo.) 374 

Jones  V.  State  (Texas) 693 

Kldd  V.  Territory  (Okla.) 216 

Kimball  v.  State  (Ga.) 131 


Krause, 

(Pa.) 

Krause, 


Commonwealth     v. 


State    V.     (Mo.), 

L. 


255 

2US 


Leindecker,  State  ex  rel,  etc. 

V.    (Minn.)    13 

Lewellyn,   State  v.    (Mo.)....     86 

Likens  v.  State  (Neb.) 184 

Lottery  Case   (U.  S.) 561 

Lowman  v.  State  (Oa.) 389 

M. 

Mann  v.  State  (Miss.) 194 

Mansfield  v.  State  (Texas)...  718 

Matth's  V.  State  (Miss.) 458 

Mazzotte  v.  Territory  (Ariz.).  1S2 
McCardell  v.  State  (Texas)..  155 
McDonald  v.  State  (Miss.)...  396 
McFarland  v.  State  (Ind.)...  715 
McKlnney  v.  State  (Texas)..  608 
McLendon  v.  State  (Texas)..  152 
Montgomery  v.  Commonwealth 

(Va.)     156 

Morrison,    Commonwealth    v. 

(Pa.)   247 

Morrison,  State  v.  (Kan.)....  347 

0. 

Oakes,  State  v.  (Me.) 438 

Oldham      v.      Commonwealth 

(Ky.)  615 

Owens  v.  State  (Ga.) 284 

Owens  v.  State  (Miss.) 337 

P. 

Penny  V.  State  (Ga.)  77 

People  V.  Cole  (Cal.) 420 

People,  Cunningham  v.  (111.).  653 
People,  Ervlngton  V.  (111.)....  189 
People  V.  Gallagher  (Chi.)...  612 
People  V.  Gotshall   (Mich.)...  630 

People  V.  Kite  (Cal.) 173 

People  V.  Smith   (Cal.)    719 

People  V.  Tillman  (Mich.) 167 

People  V.  Van  Wormer  (N.  Y.)  257 


r 

I 


^^ 


I 


i 


TABLE  OF  CASES  REPORTED. 


Vll 


I 


References  are  to  pages. 


. ; 


5 


People  V.  Webber  (Cal.) 698 

Peters  V.  White  (Tenn.) 107 

Petrle  v.  Cartwright  (Ky.)...  72 

Phillips,  State  v.  (Iowa) 325 

Phillips  V.  State  (Wash.)....  68C 

Potter  V.  State  (Oa.) 640 

Powers      T.      Commonwealth 

(Ky.)  404 

Price  V.  State  (Qa.) 117 

Pulpus  V.  State  (Miss.) 286 

Raines  v.  State  (Miss.) 404 

Ratcllff  V.  State  (Ind.) 717 

Ray  V.  State  (Texas) 223 

F.oblnson  v.  State  (Ga.) 429 

Robinson,  State  v.  (La.)....;.  357 

Rogers  v..  State  (Miss.) 418 

Ross  V.  Commonwealth  (Ky.)  294 
Ruls  V.  State  (Fla.) 199 

S. 

Shaw,  State  v.  (Vt.) 51 

Shuff,  State  v.  ( Idaho) 443 

Sims,  State  v.  (Miss.) 228 

Smith,  People  v.  (Cal.) 719 

Smith  V.  State  (Ala.) 410 

Smith,  State  v.  (Ga.) 222 

Smith,  State  v.  (Minn.) 240 

Spradley  v.  State  (Miss.)....     30 
Stancill,  State  v.   (N.  C.)....     39 

Staples  V.  State  (Ga.) 675 

State,  Alvarez  v.   (Texas)....   137 

State,  Alyea  v.  (Neb.)   101 

State,  Anderson  v.  (Fla.)    ...  201 
V.    (Texas)..  104 

(Texas) 135 

(Texas) Ill 

(Texas) 191 

(N.  C.) 186 

State,  Riggers  v.    (Ga.) 604 

State,  Blacic  v.    (Texas) 192 

State,  Bridgewater  v.   (Ind.).  270 

State,  Brooks  t.   (Ga.) 47 

State  V.  Brown  (N.  C.) 220 

State,  Brown  v.   (Texas) 118 


State,  Anderson 
State,  Atlcins  v, 
State,  Barnes  v. 
State,  Barnes  v, 
State  V.  Battle 


State,  Caddell  v.   (Texas)....  103 

State  V.  Climie  (N.  D.) 211 

State  V.  Cobb  (S.  C.) 262 

State,  Crosky  v.   (Fla.) 682 

State  V.  Crotts  (Wash.) 647 

State,  Davis  v.    (Miss.) 106 

State,  Davis  v,  (Texas) 169 

State,  Delegal  v.    (Ga.) 317 

State,  Dover  v.  (Ga.) 330 

State,  Drummer  v,    (Fla.)....  694 

State,  Erwin  v.  (Ga.) 707 

State,  Evans  v.  (Texas) 140 

State,   ex   ret.  etc.,    v.    Lein- 

decker  (Minn.)    13 

State,  Francis  v.   (Texas)....  425 

State,  Fuller  v.   (Texas) 90 

State,  Furlough  v.  (Texas) ...  129 

State,  Gee  v.    (Miss.) 402 

State  y.  George  (Del.) 556 

State,  Gillespie  v.    (Ark.) 123 

State  V.  Goode  (N.  C.) 178 

State,  Goode  v.  (Texas) 113 

State,  Gray  v.    (Fla.) 205 

State,  Grayblll  v.   (Texas)....  170 

State,  Hardy  v.    (Ga.) 689 

State,  Hogan  v.  (Fla.) 196 

State  V.  Hunt  (R.  I.) 92 

State,  Irwin  v.   (Ga.) 710 

State  v.  Irwin   (Idaho) 620 

State,  Jacobs  v.  (Fla.) 712 

State,  Jay  v.  (Texas) 126 

State,  Johnson  v.    (Wyo.)....  374 

State,  Jones  v.  (Texas) 693 

State,  Kimball  v.   (Ga.) 131 

State  V.  Krause  (Mo.) 268 

State  V.  Lewellyn   (Mo.) 86 

State,  Likens  v.   (Neb.) 184 

State,  Lowman  v.    (Ga.) 389 

State,  Mann  v.    (Miss.) 194 

State,  Mansfield  v.    (Texas)..  718 

State,  Matthls  v.    (Miss.) 458 

State,  McCai-dell  v.  (Tex.)...  155 
State,  McDonald  v.  (Miss.)..  396 
State,  McFarland  v.  (Ind.)...  715 
State,  McKinney  v.  (Tex.)...  608 
State,  McLendon  v.  (Tex.)...  152 
State  T.  Morrison  (Kan.) 347 


vm 


AMERICAN  CRIMINAL  REPORTS. 


ReforcncoB  are  to  pngeB. 


State 

State, 

State, 

Slate, 

State 

State 

State, 

State, 

State, 

State, 

State, 

State, 

State, 

State 

State, 

State, 

State 

State 

State 

State, 

State 

State 

State, 

State 

State, 

State, 

State, 

State, 

State 

State 

State 

State 

State, 

State 

State, 

State, 

State, 

State, 

State, 


V.  Oakes  (Me.) 438 

Owens  V.  (Oa.) 284 

Owens  V.   (Miss.) 337 

Penny  v.    (Ga.) 77 

V.  Phillips   (Iowa) 325 

V.  Phillips   (Waah.) CS6 

Potter  V.  (Ga.) 640 

Price  V.   (Ga.) 117 

Pulpus  V.    (Miss.) 2S6 

Raines  v.  (Miss.) 404 

Ratcliff  V.   (Ind.) 717 

Ray  V.   (Tex.) 223 

Robinson  v.   (Ga.) 429 

V.  Robinson   (La.) 357 

Rogers  v.    (Miss.) 418 

Ruls  V.  (Fla.) 193 

V.  Shaw  (Vt.) 51 

V.  Shuffi  (Idaho) 443 

V.  Sims  (Miss.) 228 

Smith  V.   (Ala.) 410 

V.    ~ 
V. 


Smith   (Ga.) 222 

Smith   (Minn,) 240 

Spradley   v.    (Miss.)...  36 

V.  Stanclll   (N.  C.) 39 

Staples   V.    (Ga.) 675 

Stephens  v.    (Tex.) 114 

Strickland  v.   (Miss.)..  462 

Stricklin  v.   (Ark.) 148 

V.  Strong  (Mo.) 278 

V.  Sumner  (N.  C.) 385 

V.  Sumpter  (Mo.) 264 

V.  Thomas   (N.  J.) 432 

Tollett  V.    (Tex.) 142 

V.  Vaughn  (Mo.) 209 

White  V.    (Tex.) 224 

Williams  v.  (Tex.) 144 

Wilson  V.    (Miss.) 226 

Wood   V.    (Miss.) 399 

Woods  V.   (Miss.) 414 


State  V.  Young   (Wash.) 93 

Stephens  v.  State  (Tex.) 114 

Strickland  v.  State   (Miss.)..  462 

Stricklin  v.  State  (Ark.) 148 

Strong,  State  v.   (Mo.) 278 

Sumner,  Sate  v.  (N.  C.) 385 

Sumpter,  State  v.  (Mo.) 264 

T. 

Territory,  Allbrlght  v.  (Okla.)  233 

Territory,  Drury  v.   (Okla.)..  300 

Territory,  Kldd   v.    (Okla.)...  216 

Territory,  Mazzotte  v.  (Ariz.).  182 

Thomas,   State  v.   (N.  J.) 432 

Tillman  v.  Beard  (Mich.) 7 

Tillman,   People  v.    (Mich.)..  167 

Tollett  V.  State  (Tex.) 142 


I 


u. 

United  States,  Francis  v. 
S.)    


(U. 


595 


V. 


Van  Wormer,  People  v.  (N.  Y.)  257 

Vaughn,  State  v.  (Mo.) 209 

w. 

Webber,  People  v.   (Cal.)....  698 

White,  Peters  v.    (Tenn.) 107 

White  V.   Stat?;    (Tex.) 224 

Williams  v.  State    (Tex.) 144 

Wilson  V.  State  (Miss.) 226 

Wood  V.  State   (Miss.) 399 

Woods  V.  State   (Miss.) 414 

Y. 

Yoimg,  State  v.   (Wasli.) 93 


z. 

Zorambo,     Commonwealth     v. 
(Pa.)   392 


Note. — The  following  cases  appear  In  full  In  the  notes: 


Reg.  V.  Walker  (Eng.) 24 

People    ex    rel.    McDonald    v. 

Miller    (Chi.) 28 

Spradling  v.  State  (Texas)...     84 
Chrlsman  v.  State  (Ark.)....  132 


Montgomery  v.  Commonwealth 
(Va.)    15G 

Montgomery  v.  Commonwealth 
(Va.) 160 

■Legg's  Case  (Eng.) 255 


TABLE  OF  CASES  REPORTED. 


ds 


References  are  to  pagen. 


Rex  V.  Ayes  (Eng.) 276 

Rampton'B  Case  (Eng.) 278 

Rew's  Case  (Eng.) 283 

Mlllman  v.  Tucker  (Eng.)...  309 

Rex  V.  Lewis  (Eng.) 369 

State  V.  Thomas  (N.  J.) 434 

Joyner's  Case   (Eng.) 435 

Reg.  V.  Archer  et  al.  (Eng.) .  430 

Reg.  V.  Phelpa  (Eng.) 4.  V 

Rex  V.  Row  (Eng.) 461 

Powers      V.      Commonwealth 

(Ky.)  512 

Angelo  V.  People  (111.) 558 

Amann  v.  People  (111.) 607 

Guedel  v.  People  (111.) 678 


Rex  V.  Finch  (Eng.) 684 

Rex   V.  White  (Eng.) 684 

Rex  V.  Jenkins   (Eng.) 685 

Rox  V.  Durore  (Eng.) 686 

R'A  V.  Lee  (Eng.) 691 

Pfcx  V.  Cook  (Eng.) 691 

Reg.  V.  Splcer  (Eng.) 692 

Rex  V.  Beech  (Eng.) 706 

Rex  V.  Hart   (Eng.) 700 

Llmcuze  v.  People  (111.) 709 

Rox  V.  Deeley  (Eng.) 711 

Rex  V.  Clark    (Eng.) 711 

Reg.  V.  Gooding  (Eng.) 714 

Reg.  V.  Davis    (Eng.) 715 


» 1 


V. 


TABLE  OF  CASES  CITED. 


References  are  to  pages. 


T^ 


A. 

Abbott  V.  State,  86  N.  Y.  460. .  97 
Adams  v.  Russell,  85  111.  284. .  614 
Addyston  Pipe  &  Steel  Co.  v. 

U.  S.,  175  U.  S.  211 579,  586 

Adkins  V.  Commonwealth,  98 

Ky.    539 530 

Aiken  v.  State    (Neb.)    59   N. 

W.  888   215 

Alexander  v.  State,  86  Ga.  246  590 
Alexander  v.  State,  114  Ga. 

266  644 

Allgeyer  v.  Louisiana,  165  U. 

S.  578  577 

Almy  V.  California,    24    How. 

169  569 

Alyea  v.  State,  13  Am.  Cr.  R. 

101  97 

Amaun  v.  People,  76  111.  18S.  607 

Amos  V.  State,  83  Ala.  1 482 

Amos  V.  State,  123  Ala.  50...  413 
Anderson  v.  State,  44  Fla.  413  208 
Anderson  v.  State,  104  Ind.  467  275 
Andrews  v.  State,  13  Tex.  App. 

343   170 

Angelo  V.  People,  96  111.  209..  558 
Armstrong  v.  Colby,  47  Vt.  359  60 
Arnold    v.    Commonwealth,  24 

Ky.  L.  R.  1921 417 

Ashcraft  v.  Commonwealth,  22 

Ky.  L.  R.    1542 543 

Aszman  v.  State,  123  Ind.  347.  457 
Atterberry  v.  State,  33  Tex.  Cr. 

R.  88  143 

B. 

Baker    v.    Commonwealth,    20 

Ky.  L.  R.  1778 543 

Barker  v.  People,  40  Mich.  411  442 
Barker  v.  Stetson,  7  Gray  53. .  9 
Barnes  v.  P(  pie,  18  111.  52..  605 
Bartholomew    v.    People,    104 

111.  601   368 

Bartlett  v.  State,  21  Tex.  App. 
500   199 


Batchelor  v.  State,  41  Tex.  Cr. 

R.  501  ...- 146 

Baxter  v.  People  (111.)  3  Gil- 
man,  368   305 

Beckwith  v.  Phllby,  6  Barn.  & 
C.    635    58,  68 

Bell  V.  State,  18  Tex.  App.  53.  170 

Benge    v.    Commonwealth,    92 

Ky.  1 536 

Benson  v.  United  States,  146 

U.  S.  325 260 

Bethel's  Case,  5  Mod.  19 63 

Biggers  v.  State,  109  Ga.  105..  677 

711 

Bingham  v.  State,  59  Miss.  529  33 

Bish'-p  V.  State,  62  Miss.  289.  404 

Black  V.  State,  57  Ind.  109..  715 
Blackburn   v.   Commonwealth, 

12   Bush.   181 489 

Blackwell  v.  State,  67  Ga,  76 

(4  Am.  Cr.  R.  183) 262 

Blake  v,  Barnard,  9  C.  &  P.  626  81 

Blake  v.  State,  3  Tex.  App.  581  143 

Blaker  v.  State,  130  Ind.  203 . .  275 

Boone  V.  State,  8  Lea.  739 110 

Botsch  V.  State,  43  Neb..  501..  137 
Bowers  v.  State,  24  Tex.  App. 

548  483 

Bowlin  V.  Commonwealth,  94 

Ky.  395 488 

Bowman  v.  Chicago  &  N.  W. 

Ry.  Co.,  125  U.  S.  465.. 572  581 

Boyd  V.  U.  S.,  142  U.  S.  450. .  508 

Boyle  V.  State,  105  Ind.  469..  273 
Bravo  v.  State,  20  Tex.  App. 

188   722 

Brazil  V.  State,  83  Ala.  55 614 

Brennan  v.  People,  15  111.  512  507 
Briggs  V.   State,  6  Tex.  App. 

144  144 

Brlnkley  v.  State,  44  Fla.  413.  205 

207,  208 

Brogy's  Case,  10  Grat.  732 167 

Bromley  v.  People,  150  111.  297  710 
Brooks  V.  Mangan,    86    Mich. 

576  8 


XI 


XII 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pages. 


571 


568 


119 

327 

89 


Brown    v.    Commonwealth,  14 

Bush.  390  488 

Brown    v.   Houston,  114  U.  S, 

630  

Brown  v.  Maryland,  12  Wheat. 

419  

Brown  v.  People,  OG  111.  344..  606 

Brown  v.  State,  95  Ga.  481 79 

Brown  v.  State,  42  Tex.  Cr.  R. 

417  

Brown  v.  AVeaver,  76  Miss.  7. 
Browning  v.  State,  11  Am.  Cr. 

R.  645  

Bryan  v.  State,  19  Fla.  864..  690 

097 
Buckles  V.  Commonwealth,  24 

Ky.  L.  R.  571 417 

Buckner  v.  Commonwealth,  14 

Bush.  603  488 

Buel  V.  State.  104  Wis.  132...  638 

Bullock  V.  State,  73  Md.  1 590 

Burgis  V.  State,  4  Ind.  126...  34 
Burke  v.  Bell,  3G  Me.  317..  13,  20 
Burrett  v.  Doggett,  0  Fla.  332  683 
Burroughs  v.  State,  17  Fla.  643  714 
Bush  V.  Commonwealth,  78  Ky. 

269  -188 

c. 

Canada's  Case,  22  Gratt.  899..  159 
Cancemi  v.   People,  18   N.   Y. 

128   442 

Carr  v.  State,  19  Tex.  App.  635  722 
Carratt  v.  Morley,  1  Q.  B.  IS. .  10 
Cartwright   v.    State,   16   Tex. 

App.   473    406 

Casat  V.  State,  40  Ark.  511...  134 
Casey  v.  State,  49  Xeb.  403..  305 
Champion  v.  Ames,  188  U.  S. 

321    595.  .596,  602,  603 

Chapman  v.  State,  18  Ga.  736.  GOG 
Charles  v.  State,  3G  Fla.  091..  683 
Chicago    V.    Kenney,     35     111. 

App.  57  35 

Chicago  City  Ry.  Co.  v.  White, 

110  111.  App.  23 614 

Choen  v.  State.  52  Ind.  347...  718 
Chrisman  v.  State,  54  Ark.  832  132 
Clarey  v.  State.  Gl  Neb.  688..  137 
Clark    V.    Commonwealth,    16 

B.  Mon.  213 704,  705 

Clark   V.   New   Brunswick,   14 

Vroom  175  34 

Clark  V.  State.  78  Ala.  474...  413 
Clawson  v.  State,  14  Ohio  St. 

234 472,  540 

Clayton  v.  State,  4  Tex.  App. 

515  457 


Clayton  v.  State,  21  Tex.  Cr. 

App.  343 223 

Clem  V.  State,  31  Ind.  480 273 

Cle.-n  V.  State,  33  Ind.  418 315 

Clemens  v.  Conrad,    19    Mich. 

170  364 

Clifford  V.  Brandon,  2  Camp. 

358  23 

Coffin  V.  U.  S.,  156  U.  S.  432.  454 
Cohen   v.   Virginia,  6   Wheat. 

264  589 

Cole    V.    Wilson,    18  B.  Mon. 

214   542 

Collins  V.  New  Hampshire,  171 

U.   S.   30 588 

Commonwealth    v.    Blood,     4 

Gray  31    433 

V.  Boschino,    176    Pa.    St. 

115  253 

V.  Breyessee,    160   Pa.    St. 

450  250 

V.  Buccieri,  153  Pa.  St.  535  250 

v.Call,   21   Pick.   515 469 

V.Campbell,  7  Allen  541..  484 
V.Carey,  12  Cushing  246.  22 
V.  Curtis,     Thatcher's    Cr. 

C.  202   680 

V.  Deacon,  8  Serg.  &  R.  47  68 
V.  Dejarden,  126  Mass.  46.  690 
V.  Drum,  58  Pa.  St.  9.250,  273 
V.Duncan,  91  Ky.  595...  231 

V.Eaton,  15  Pick.  273 214 

V.  Gerade,  145  Pa.  289 456 

V.Harmon,  4  Pa.  209 395 

V.  Holland.  7  Ky.  L.  R.  299  704 
V.  Kenney,  12  Mete.  235...  394 
V.  Kneeland,  20  Pick.  206.  274 
V.  Macloon.  101  Mass.  1...  237 
V.  McCIean.     2     Pars.    Eq. 

Cas.  308 470 

V.  McLaughlin,    11    Cush. 

59S    722 

V.  McLaughlin,     12    Cush. 

615   22 

V.  McPike,  3  Cush.  181....  361 

377 

V.Moore,  130  Mass.  45 683 

V.  Patrick,  SO  Ky  005....  535 
V.  Peaslce,  177  Mass.  207.  598 
V.  Pomeroy,  117  Mass.  143.  454 

V.  Robey,  12  Pick.  490 080 

V.  Ro£?:ors  (Mass.),  7  Mete. 

500  456 

V.  Tuclc,  20  Pick.  301 214 

V.  Ward.  4  Mnss.  490 34 

V.  Webator,   5  Cush.   295 . .  273 

479 
V.  Wernt!^  101  Pa.  St.  597  379 
V.  Zappe,  153  Pa.  St.  498..  253 


TABLE  OF  CASES  CITED. 


XU) 


References  are  to  pages. 


Conraddy  v.  People,  5  Parker 

234  75 

Cook's  Case,  13  How.   St.  Tr. 

334   370 

Cook's  Case,  2  East.  P.  C.  G16  691 
Cook  V.  Nethercote,  6  Carr.  & 

Payne  741  22,  23 

Cook  V.  State,  25  Fla.  698 198 

Cornelius    v.     Commonwealth, 

15  B.  Mon.   539 474 

Cornell  v.  State,  6  Lea  624...  110 
Co.  of  Mobile  V.  Kimball,  102 

U.   S.   C91 571 

Coupey  V.  Henley,  2  Esp.  540.  22 
Covington  &  C.  Bridge  Co.  v. 

Ky.,    154   U.   S.   204 572 

Cowles  V.  Dunbar,  2  Car.  &  P. 

5G5    59 

Crandall  v.  Nevada,  6  Wall  35  5C9 
Crenshaw  v.  State,  G^  Ga.  449  690 
Crutcher  v.  Kentucky,  141  U. 

S.  47 572 

Cundell  v.  Pratt,  M.  &  M.  108.  371 

372 
Curtis  V.  People,  Breese  256..  190 
Curtis  V.  People,  1  Scam.  285,  190 

D. 

Darst  et  al.  v.  People,  51  111. 

286   12 

Davis  V.  People,  19  HI.  74 714 

Davis  V.  Russell,  5  Bing.  354.  58 

Davis  V.  U.  S.,  160  U.  S.  469.  453 

Dawson  v.  State,  62  Miss.  241.  457 

Dean  v.  State,  147  Ind.  215...  275 

Denipsey  v.  People,  47  HI.  323  442 
Deroconrt  v.  Corbishly,  5  El.  & 

BI.  ISS 23 

Dewees    v.    Colorado    Co.,    32 

Tex.  570  467 

Dewev  v.  St.  Albans  Trust  Co., 

57  "Vt.  332 68 

Dick  V.  State.  30  Miss.  631...  690 
Dllgar   V.    Commonwealth,    88 

Ky.   560 74 

Dockery  v.  State,  35  Tex.  Cr. 

R.  487  173 

Dodd  V.  Norria,  3  Campp.  519.  372 
Doering  v.  State,  19  Am.  Rep. 

6G9   75 

Doering  v.  State,  49  Tnd.  58..  233 

Dooley  v.  U.  S.,  183  U.  S.  151.  591 
Dorsett's  Case,  5  Roger's  Rec. 

77   705 

Douglas  V.  Kentucky,    168   IT. 

S.  488 576,  585 

Dove  V.  State,  3  Heisk.  348...  456 


Dowlen  v.  State,  14  Tex.  App. 

61  117 

Doyal  V.  State,  70  Ga.  134...  429 

Drake  v.  State,  08  Ala,  512..  34 

Drake  v.  State,  19  Ohio  St.  211  198 
Drennan   v.   People,   10   Mich. 

169  21 

Drummer  v.  State,  45  Fla.  —  208 

Durham  v.  People,  4  Scam.  172  680 

681 

Dusy  V.  Helm,  59  Cal.  IBS....  10 

E. 

Eanes  v.  State,  10  Tex.  App. 

421  97 

Edward's  Case,  4  T.  R.  440...  370 
Ellenberg  v.  State,  36  Tex.  Cr. 

R.  139   173 

Ellerbe  v.  State,  75  Miss.  531.  345 

Elliott  V.  State,  34  Neb.  48 . . .  638 

Emmett  v.  Lyne,  1  N.  R.  255. .  84 
English  V.  State,  30  Tex.  App. 

470 714 

Erben  v.  LoUilard,  19  N.  Y.  299  614 
Ettinger  v.  Commonwealth,  9-. 

Pa.  338  394 

Evans  v.   State,   106    Ga.    519 

(11  Am.  Cr.  R.  695) 262 

Ex  parte  Dimmig,  74  Cal.  164  424 

Jackson,  96  U.  S.  727....  585 

Whitchurch,  1  Ark.  55...  63 


F. 


States, 


10 
343 


455 
146 


Fairbanks    v.    United 

181  U.  S.  283 589 

Farr  v.  Ladd,  37  Vt.  156 GO 

Farv'i..  V.  People,  129  111.  521.  408 
Felton  V.  U.  S.,  96  U.  S.  699. . .  274 
Fenelon  v.  Butts,  49  Wis.  342. 
Finley  v.  Hunt,  56  Miss.  223. 

Finn's  Case,  5  Rand.  701 167 

Fisher  v.  State,  30  Tex.  App. 

502  

Fisher  v.  State,  33  Tex.  792. 
Fixmer  v.  People,  153  111.  123.  306 
Fletcher  v.  Conly   (la.)   2  G. 

Greene  88    605 

Florida,  etc.,  R.  Co.  v.  Lucas, 

no  Ga.  121 643 

Flournoy   v.    State,     25     Tex. 

App.  244  91 

Foltz  v.  State,  33  Ind.  215....  718 
Ford  v.  State,  71  Ala.  385....  455 
Forde  v.  Skinner,  4  C.  &  P.  239  S3 
Forman  v.  Commonwealth,  86 

Ky.  606  532 


m 


XIV 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pages. 


Fortenberry  v.  State,  72  S.  W. 

-go  !>>> 

Fo''ster'v."  State. 'to  Miss.  750..  40S 
Foster  v.  State.  25  Tex.  App. 

Fox  V.  Gaunt.'  3  B.  &  A.  798. .     22 
France  v.   United  States.  164 


U.  S.  676... 


,.  601 


Frank  V.  State.  27  Ala.  37....  4!^4 

Freeman  News  Co.  v.  Meuck- 
en.  115  Ga.  1017.  ...•••••  ••  6*1 

Freidrich  v.  Territory.  2  Wash 


358 


651 


Friend's  Case,  Sir  John,  11 
How.  St.  Tr.  1331 3.0 

Frost  V.  HoUoway,  1  Starkle  s 
gy    197 3GS.  372 

Fulcher  v.' State.  28  Tex.  App. 

•■•■••    37^ 


471 


G. 


Galbralth  v.  Fleming.  60  Mich. 


403 


168 


Gale  V.  People.  26  Mich.  157..  628 

638 
Gallery  v.  State.  92  Ga.  463. . .  333 
Gelzenlenchter  v.  Niemeyer.  64 

Wis.  321  10 

George  v.  State,  21  Tex.  App. 

315  194 

Gibbons  v.  Ogden,  9  Wheat.  1.  o6G 

568.  569,  570.  572.  575.  579.  583 

591 
Gibson  v.  State.  89  Ala.  121..  482 

483.  488 
Glfford  V.  Wiggins,    50   Minn. 

401  10 

Gilbert  v.  Emmons,  42  111.  143.       8 
Givens  v.  Crawshaw,  21  Ky.  L. 

R.  161S   520,  522,  523 

Givens  v.  State,  40  Fla.  200..  683 
Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 114  U.  S.  196....  571 
572,  6^3 
Glover  v.  State.  105  Ga.  597..  391 
Gcins  V.  State,  46  Ohio  St.  457  539 
Gorrlcn  v.  State,  59  Ind.  75..  718 
Graham      v.      Commonwealth 

(Ky.),  16  B.  Mon.   587 455 

Grant   v.   Commonwealth,    71 

Pa.  St.  495   248 

Graves  v,  Johnson,  179  Mass. 

53  598 

Graves  v.  State.  45  N.  J.  L. 

203  435 

Grnves  v.  State.  45  N.  J.  L. 

347  455 


Gray  v.  State.  44  Fla.  436. .. .  208 
694.  690.  697 
Green  v.  Kennedy,  46  Barbour 

16  32 

Green  v.  State,  55  Miss.  454. . .  343 
Green  v.  State,  88  Tenn.  614 . .  455 
Grosvenor    v.    Inhabitants    of 

St  Augustine,  12  East  244.  237 
Guedel  v.  People,  43  111.  226 . .  677 

078,  694 
Guffee  V.  State,  8  Tex.   App. 

187  147 

Guiteau's  Case,  1  Mackey  498.  239 

453 
Guyness  v.  State,  25  Tex.  App. 

584  721 

H. 

Hall  V.  People,  47  Mich.  636. .  96 
Hall  V.  State,  16  Tex.  App.  6..  170 
Hallgren  v.  Campbell,  82  Mich. 

255  493 

Hamilton  v.  People,  113  111.  38  229 
Hamlin  v.  Kassafer,  15  Or.  456  493 
Hanley  v.  Kansas  City  So.  R. 

Co.,  187  U.  S.  617 573 

Hanover  R.  R.  v.  Coyle,  55  Pa. 

St  396    378 

Hansbrough  v.  Neal.  94  Va,  722  164 
Hardy's  Case,  24  How.  St  Tr. 

726   371 

Harris  v.  People.  64  N.  Y.  148  696 
Hatton's  Case.  31  Tex.  Or.  R. 

586  136 

Hauser  v.  People.  210  111.  253.  618 
Hawkins  v.  Commonwealth,  61 

Am.  Dec.  162 75,  327 

Hawkins  v.  State.  17  Tex.  App. 

593  156 

Hawthorne  v.  State.   58  Miss. 

778  398.  404 

Head  v.  Martin.  21  Am.  &  Eng. 

Enc.  Law  204 75 

Head  v.  Martin,  85  Ky.  481...  74 
Henderson  v.  New  York,  92  U. 

S.  259  570,  584 

Henderson  v.  Wlckham,  23  L. 

ed.   543  570.  5<?4 

Henning  v.  State,  106  Ind.  3S6  274 
Hensley     v.      Commonwealth 

(Ky.),   1    Bush.   11 714 

Herald  v.  State.  37  Tex.  C.  R. 

409 693,  71<» 

Herman  v.  State.  75  Miss.  340.  40(? 

461 
Heston  v.  Railroad,    79    Am. 

Dec.  434  611 


TABLE  OF  CASES  CITED. 


XV 


References  are  to  pages. 


Hlckam  v.  People,  137  111.  75  428 
Hicks  V.  State,  99  Ala.  169...  413 
Hinson  v.  State,  66  Miss.  532.  342 

Hite  V.  State,  9  Yerg.  357 680 

Hodges  V.  State,  8  Ala.  55 64 

Hodgson's  Case,  Russ  &  Ry.  C. 

C    211  372 

Hogan  V.  State!  42  FlaV 562!."  200 
201,  202,  207 
Holder  v.  State  (Ark.),  25  S. 

W.  279    627 

Holding's  Case,  Arch.  Cr.  PI. 

102  (2d  ed.) 372 

Holmes'  Case,  Cro.  1  Part  376.  435 
Holt  V.  State,  78  Miss.  631...  408 
Holt  V.  Territory,  4  Okl.  76. .  446 
Hooper  v.  California,  155  U.  S 

648 587-588 

Hopps  V.  People,  31  111.  385..  45G 
Hopt  V.  Utah,  110  U.  S.  574..  442 
Howard  v.  Commonwealth,  96 

Ky.   19    536 

Howard  v.  Com.,  110  Ky.  356.  474 

528 
Howell  V.  Com.,  26  Grat.  995..  273 
Howser  v.  Com.,  51  Pa.  332..  395 

Hull  V.  State.  79  Ala.  32 697 

Humpeler  v.  People.  92  111.  400  710 
Hunter  v.  State,  40  N.  J.  Law 

495  379 

Hutton  V.  State,  23  Tex.  App. 

386  117 

I. 

In  re  Barney's  Will,  71  Vt.  217    71 

May,  41  Mich.  299 22 

Rahrer,  140  U.  S.  545....  578 
580,  582 
Rapier,  143  U.  S.  110....  585 
Insurance  Co.  v.  Landram,  88 

Kv.  433 518.  519,  520 

Irving    V.  State,  18    Tex.    Cr. 

Apn.  51   223 

Irwin  V.  State,  117  Ga.  722..  676 
Isaacs  V.  State,  36  Tex.  Cr.  R. 
505  609 

J. 

Jackson's  Case,  97  Vt.  7G4 164 

Jackson  v.  Commonwealth,  100 

Ky.  239 536 

Jackson  v.  Commonwealth,  14 

S.   W.   677 97 

Jackson  v.  State,  91  Ga.  271 . .  97 
Jackson  v.  State,  55  Wis.  589.  714 
Jay  V.  State,  41  Tex.  Cr.  R. 

541    121 


Jayne  v.  Drorbaugh,  63  la.  711  495 

Johnson  v.  State,  73  Ala.  483.  701 

Jolly  V.  State,  94  Ala.  19 4S3 

j  Jones  V.  People,  166  111.  2C4.  316 

t  Jones  V.  Reus,  5  Tex.  Civ.  App. 

i      628  311 

Jones  V.  State,  18  Fla.  889...  683 

Jones  V  State,  114  Ga.  73 5 

I  Jones  V.  State,   2  Tex.  Cr.   R. 

!      485 719 

Jordan  v.  State,  79  Ala.  9 482 

I  Joyner's  Case,  Kelyng  29 435 

'  Judson    V.  Riordon,  16    Minn. 

I      431 , 12 

I  K. 

I  Kaln  V.  State,  8  Ohio  St.  307. .  446 
Kelley  v.  State.  53  Ind.  311..  672 
Kennedy  V.  Com.,  14  Bush.  312  532 
Kennedy  V.  Com.,  77  Ky.  3G0..  545 
Kennedy  V.  State.  31  Fla.  428.  683 

Kent  V.  Miles,  68  Vt.  48 61 

Kimball  v.  Borden,  95  Va.  203  164 
King  V.  Clarke,  1  Salk.  349..  63 
King  V.  State,  74  Miss.  576...  455 
Kinnard  v.  State.  35  Tex.  Cr. 

R.  270  117 

Klrby  v.  State,  23  Tex.  App.  13  484 
Knight  V.  State  (Fla.),  32  So. 

110  203 

Kouns  V.  State,  3  Tex.  App.  13  144 
KuDkle  V.  State,  32  Ind.  220.,  273 

L. 

Lacefield  v.  State,  34  Ark.  275  132 

133 
Lamb  v.  People,  96  111.  73.484,  508 
Lanahan  v.  (Ilommon wealth,  84 

Pa.  St.  80 250,  253 

Lane  v.  Commonwealth,  59  Pa. 

St.  371    442 

Lane  v.  Degberg,  B.  X.  P.  19.  84 
Langdon  v.  People,  133  111.  382  456 
Langford  v. -Railroad  Co.,  144 

Mass.   431 9 

Lamed  v.  State,  41  Tex.  Cr.  R. 

509  146 

Laun   V.   State,   25   Tex.   App. 

497   226 

Lawhead  v.  State  (Neb.),  65  N. 

W.  779 215 

Layer's  Case,  16  How.  St.  Tr. 

121  370 

Leahy  v.  State,  31  Neb.  566..  626 
Lee  V.  State,  34  Tex.  Cr.  R.  519    85 

91 
Legg's  Case,  Kelyng  27 255 


XVI 


AMERICAN  CRIMINAL  REPORTS. 


References  arc  to  pages. 


Leisey  v.  Hardin,  135  U.  S.  100  5S1    McDanlel  v.  State,    8    Smodes 


Lelcup  V.  Port  of  Mobile,  127 

U.  S.  G40 572 

Leonard  v.  Territory,  2  Wash. 

Ty.  3S1  446 

Leslie  v.  Com.,    19   Ky.  L.  R. 

12ul    542 

Leslie  V.  State,  35  Fla.  171..  6S3 

Lewis'  Case,  4  Esp.  225 371 

Lewis  V.  Com.,  19    Ky.    L.    R. 

n^.;i    542 

Lewis  V.  State,  90  Ga.  95 711 

Lewis  V.  State,    28    Tex.    App. 

140  6SS 

Lewis  V.  State,     29    Tex.    App. 

201    379 


&  M.  401   404 

McDermott  v.    State,  89    Ind. 

1S7    273 

McDonald  v.  State   (Fla.),  33 

So.  72   208 

McFarland   v.  State,   154   Ind. 

442.  13  Am.  C.  R.  715 713 

McGin  V.   State,   30   L.   R.   A. 

452    CIO 

McKinney   v.  State,  63    S.  W. 

7C9   105 

McLaughlin  v.  State,    52    Ind. 

279   715 

McLaughlin  v.  State,    52    Ind. 

47G   715 


License  Cases.  5  How.  504 .. .  5SC     McLendon   v.  State,     j  S.  W. 
Lights  V.  State,  21  Tex.  App.         i      553    194 


308    368 

Limour.e  v.  People,  5S  111.  App. 

314    709 

Linbeclv  v.  State,  1  Wash.  336 


McReynclds  v.    State,    4    Tex. 

App.    327    144 

Jl'Culloiigh     V.    Marvland,     4 

Wheat.   316   575.   592 


650,  651    Meece    v.    Commonwealth, 


Lindle  v.  Com.  Ill  (Kj-.).  866    76  '      Ky.   5S6 


619 


Lindsay  v.  People,  63  X.  Y.  153  261     Mcrgentheira     v.     State,     107 

Liner  v.  St-ite.  124  Ala.  1 413         Ind.    567    715 

Loeffner  v.  State,  10  Ohio  St.  Meyer  v.  Clark,  41  N.  Y.  Sup. 

598    455         Ct.    107    23 

Lofton  V.  State.  79  Miss.  723.  289  j  Miers    v.    State,    34  Tex.    Cr. 
Lccmis  V.    Render,    48    Hun.  App.   161    122 

2GS  ■ 10    Miller  V.  State,  69   Ind.   284..   718 

Lunn  V.  State,  44  Tex.  85 146     Miller  v.  State,    25    Wis.    384.  507 

Lyach  v.  Com.,  77  Pa.  St  207,  250  ■  Millman    v.    Tucker,     Peake'g 

Add.  Nisi  Prius  Cases.. 222,  369 

M                                 Minnesota  v.  Barber,  136  U.  S. 
313   

Macbride  v.  Maclride,  4  Esp.         '  ^"^^^^hell^v.^Commonwealtli'.'n,' 

MagnesVV:'siate.*b7'X;k.^59i  ?25     ^'^''^  v- ^tate:j3'fnd.'2V^.. 
MaKoiiys  Case,  Co.  9  Rep.  fol. 


■S4 


67  b 255 

Main  v.  McCarty,  15  111.  441..  21 
Marks  v.  Townsend,  97  N.  Y. 

590    8 

Martin   v.   State,  89   Ala.  115 


99 


:\Ionts,omery  v.    Com..   98 

840   

Moore  v.   People,   146   111!  Cno 

(11  Am.  Cr.  R.  156) 

Moore  v.  State,    33    Tex.    Cr. 

App.   306    96 

ISO    4s-     ^^"''S'""  V.  State,  61  Ind.  447.  690 
Martin's  Case,  5  C.  &  P.  128.'.'  679     ^■f.^!''  '''  ^''°I^"^«'  ^  C  &  P. 

Massie  v.  Coffimonv.-ealth,    93  "       ^^ 

Ky.  5SS   519,  520    ^^osseaux  v.  Erigham,  19  Vt. 

Massie  V.  State,  27   Tex.  App,         j      '^^'^    60 

617    122  i  Moulie  v.  State.  37  Fla.  .^21..   198 

Maxbury  v.  Madison,  1  Cranch.         {  Mozee  v.  State,  11  Am.  C/   R 

,1"G    592'      1?S    289 

Mayer  v.   Murphy,   n   vrocm  Mugier  v.   Kansas,   123  U    S 

14a    34        623    ...  '  ^^(\ 

McBridov.  Commonwealth,  13  ^        Mulligan  v.  Com,',  "84 "ky: '230 

MllSn      ,ju!>      704  -^^-       rn(< 

McDaniel  v.  State,  76  Ala.  1.  4S8    Mulloy  v.  State,  58  Neb.  204 ".  102 


TABLE  OP  CASES  CITED. 


XVll 


References  are  to  pages. 


Murphy  v.  Moles  (R.  I.),  25 

Atl.   977    495 

Murphy  v.  State,  31   Ind.  511 

273,  274 

Murphy  v.  State,   43   Neb.   38 

102,  184 
Murphy  v.  Walters,    34    Mich. 

180    10 

Muscoe  V.  Commonwealth,  86 

Va.  443  (8  Am.  Cr.  R.  443).     13 

N. 

Nathan  v.  liOulslana,  8  How. 

73   589 

Neal  \"joyner,  89  N.  C.  289..     43 

Nels  V.  State,  2  Tex.  280 457 

Neubrandt   v.    State,   53    Wis. 

gg    683 

Newport  "v.State,  140  Ind.  299  273 
Newton  v.  Locklln,  77  111.  103  25 
N.  Y.  L.  Ins.  Co.  v.  Cravens, 

178  U.  S.  389 587,  588 

Nlchol's  Case,  Russ.  &  Ry.  130  83 
Nicholson  V.  State,  117  Ala.  32  413 
North  V.  People,  189  111.  81...  22 
Norwood,  etc.,  v.  Andrews,  71 

Miss.    641    337,  344 

Nutting  V.  Massachusetts,  183 

U.  S.   553    589 

o. 

Obrien   v.  Commonwealth,    89 

Kv.   362    539 

O'Brien  v.  State,  12  Ind.  369  34 
O'Brvan  v.  Allen,  95  Mo.  68..  267 
O'Connor  v.  State.  97  Ind.  104  718 
Oerter    v.  State,  57    Neb.    135 

(11   Am.  Cr.  R.  19.) 316 

Ogletree  v.  State,  28  Ala.  693.  134 
Oliver  v.  Jersey  City,  (N.  J.) 

44   Atl.   468 495 

Ote-o  v.   State.  30  Tex.   App. 

450    688 

P. 

Panton  v.  People,  114  111.  505  442 
Parks  v.  State,  105  Ga.  242.. 323,  391 
Passenger  Cases,  7  How.  283.  5G9 
Pefferling  v.  State.  40  Tex.  486  173 
Pells  V.  State,  20  Fla.  774..  683 
Pence  v.  Dozier,  7  Bush.  138..  542 
Pennington  v.  Com.,  21  Ky.  L. 

R.  542  543 

Pennsylvania  Co.  v.  Ray,  102 

U.  S.  451 310 

Pensacola  Tel.  Co.  v.  Western 

Union  Teleg.  Co.,  96  U.  S.  1 

570,  571,  603 


People 

V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


V. 
V. 
V. 

V. 

V. 


V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


V. 
V. 
V. 

V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 


v.  Abbott,  97  Mich.  484  96 
Ah  Choy.  1  Idaho  317  447 
Ah  Len,  92  Cal.  282..  628 
Allen,  1  Park  445....  680 
Arnett,  129  Cal.  306..  720 
Barnhart,  59  Cal.  381..  720 
Bawden,  90  Cal.  195..  456 
Bliven,  112  N.  Y.  91..  307 
Bowers,  79  Cal.  415...  625 
Brown,  59  Cal.  351...  508 
Brown,  72  N.  Y.  571..  544 
Cahoon,     88    Mich.    456 

G28,  638 
Callaghan     (Utah),      6 

Pac.  54   362 

Colt,  3  Hill  (N.  Y.),..  679 
Crapo,  76  N.  Y.  2S8..  C38 
Davidson,  5  Cal.  133..  96 
Devine,  95  Cal.  231...  628 
Donnelly,  2  Parker  Cr. 

R.    182    261 

Enoch,      (X.     Y.),      13 

Wend.  159   478 

Gardner,  144  N.  Y.  119  262 

Gill,   6   Cal.   637 237 

Henry,  77  Cal.  445....  701 
Herrick,  13  Johns  82..  541 
Jefferson,  52  Cal.  452.  721 
Johnson,  l?.l  Cal.  511.  176 
Kilvlngton,  104  Cal.  86     75 

Lee,    107   Cal.   477 702 

Lee  Chuck,  78  Cal.  327  628 
Mather,  4  Wend.  229..  492 
McCann,  IG  X.  Y.  58..  455 
McElvaine,   125    X.    Y. 

596    455 

Mendenhall    (Cal.),    67 

Pac.  32'^    135 

Mullings,  83  Cal.  138..  625 
Mvers,  20  Cal.  51S...  456 
Nevins.     1      Hill      154 

60,  63,  66 

Nino,  149  N.  Y.  317...  455 
O'Callaghan,     2     Idaho 

156 446 

Parker,  91  Cal.  91...  701 
Piatt,  4  N.  Y.  Cr.  R.  53  538 
Slatterlee,  5  Hun.  167.  261 
Schryver,  42  X.  Y.  1 . . .  273 
Stanley,  47  Cal.  114..  289 
Stephenson,     98     Mich. 

218    494 

Ward,  110  Cal.  369....  702 
Warren,  1  Park.  338..  680 
Watson,  125  Cal.  342..  96 
Wells,  100  Cal.  459....  624 
Woody,  48  Cal.  80....  176 
,  Young,  65  Cal.  225....  701 


•  •• 

XVUl 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pages. 

Patterson  v.    State.  75    Miss.         I  R.  v.  Puddifoot,    1    Moody   C. 

675  420        C.   247 691.   692 

Paul  v'virgini'aVs  Wall.  168  R.  v.  Salisbury,    Plow    100...  437 

raui  V.   VLB  u  ^^^   ^^^    ^   ^    Turner,  etc.,  2  Harg.  St. 

Pearce  v.  State  (Tex.),  40  S.  Tr.  526  437 

W    806    143  Railroad  V.  Joyner's  Admr.,  92 

Peden  v.  State,  61  Miss.  268. .  507        Va.  354 164 

Penfleld  v.  Carpenter  (N.  Y.),  Railroad    Co.  v.    Hedrlck,    62 

13  Johns  350 614        jjjgg    £9  344 

Penrod  v.  People.  89  IlL.loO.  714  ^^^^^^^^    ^,^_   ^_    ^^^^^^^    ^^ 


Perry  v.  State,  87  Ala.  30....  413 
Perry  v.  State,    4    Tex.   App. 

566  714 

Perry  v.  Suller,  92  Mich.  72..  58 
Pertett  v.  Peoi)le,  70  111.  171.  442 
Peterson  v.  State,  11  Fla.  285 

204,  208 
Phalen   v.  Virginia,    8    How. 

1G:;    576 

Phillips  V.  Trull,  11  John  486  23 
Pickard  v.  Pullman    So.    Car 

Co.,  117  U.  S.  34 572 

Plnkerton  v.  Verberg,  78  Mich. 

573  22 

Pittsburg    &  S.    Coal    Co.    v. 

Bates,  156  U.  S.  587  572 

Polk  V.  State,  19  Ind.  170....  45.", 
Pound  V.  State,  43  Ga.  90....  643 
Pow  V.  Beckner  et  al.,  3  Ind. 

475  22 

Powell    V.  State,    101    Ga.    9 

323,  333,  391 
Powers  V.  Commonwealth,    26 

Ky.  L.  R.  1111  533 

Powers  V.  Commoawealth,  110 

Ky.    386 515,    556 

Powers  V.  Commonwealth,  114 

Ky.  237  512 

Prell  V.  McDonald,  7  Kan.  450  34 
Price  V.  State,  72  Ga.  441 ... .  333 
Priddle's  Cases,  1  Leach  C.  L. 

364 

Prlndiville  v.  People,    42    111. 

217  97 

Prlne  v.  State,  73  Miss.  842.  420 

Q. 

Qulnn  V.  Halbert,  57  Vt.  178.  54 
Quinn  V.  Helsel,  40  Mich.  576    21 

R. 

R.  V.  Douglas,  1  Campb.  213.  692 
R.  V.  Looms,  1  Moody  C.  C. 

160   691,  692 

R.  V.  M'Phane,  etc.,  1  Carr  & 

M.  212    437 

R.  V.  Phelps,  1  Carr.  &  M.  180  437 


Va.   608    164 

Railway  Co.  v.  Tate,  70  Miss. 

348    343 

Rampton's  Case,  Kel.vng  41..  278 
Ramsey  v.  State,  92  Ga.  53 . . .  49 
Ratcllff  V.  State,  2  Ind.  App. 

64  676 

Ratterman  v.  Western  Union 

Tel.  Co.,  127  U.  S.  411 572 

Re  Durant,  60  Vt.  176 65 

Re  Fitton,  68  Vt.  297 69 

Reed  v.  State,  16  Ark.  499...  690 
Reeves    v.  Territory    (Okla.), 

CI  Pac.  828   508 

Regina  v.  Archer,  Geo.,  et  al., 

2  Moody  C.  C.  360 436 

V.  Butterworth,     Russ.    & 

R.v.   520    437 

V.  Crumpton,    9    C.    &    P. 

597    437 

V.  Davis,   2    Den.    C.    L. 

231   715 

V.  Dent,  2  Cox  Cr.  C.  354  713 

V.  Drake,  2  Salk.  660 706 

V.  Faulkner,  19  Eng.  Rep. 

578  477 

V.  Frost,   Dearsly     C.    C. 

474    713 

V.  Gooding,     1      Car.      & 

Marsh,   297   714 

V.  Phelps,  John,  2  Moody 

C.   C.   308    437 

V.  Spicer,  1  Deulson  C.  L. 

82    692 

V.  St.  George,  9    C.  &    P. 

483  81,  437,  438 

V.  Walker,  1    Dearsley  C. 

C.  358    24 

V.  Walker,    25   Eng.    Law 

&  Eq.  589   23 

Reid    V.  Colorado,    187   U.    S. 

137  579 

Reilley  v.  U.  S.,  46  C.  C.  A. 

25    596 

Reneau  v.  state,  2  Lea  720...  327 
Rew's  Case,  Kelyng  26. . .  .283,  674 


V. 
V. 


V. 
V. 


TAPLE  OF  CASES  CITED. 


SIX 


References  are  to  pages. 


Rex  V.  Ayes,  Pierre,  Russ.  & 

Ryan    16G    276 

V.  Bedford  Level  Corp.,  6 

East   368    493 

V.  Beech,    1   Leach    C.    L. 

158   706 

V.  Clark,    1     B.    &     Blng. 

473    680 

V.  Clark     F.,     Russell     & 

Ryan,   358    711 

V.  Clewes.  4  Car.  &  P.  221.  408 
V.  Cook,  1  Leach  C.  L.  123  691 
V.  Davis,  7  Car.  &  P.  785  70 
V.  Deeley,   1  Moody  C.  C. 

303     676,    711 

V.  Durore,  1  Leach  C.  L. 

390   686 

V.  Edwards,     4    Term    R. 

440    3Co 

V.  Emden,  9  East.  437..  680 
V.  Farrington,  Russ.  &  R. 

207   479 

V.  Finch,  Francis,  1  Moody 

C.  C.  418   684 

V.  Gutteridge,  9  Car.  &  P. 

471   438 

V.  Hart,    1   Leach    C.    L. 

172    706 

V.  Howarth,  1   Moody  Cr. 

Cas.  207   70 

V.  Hughes,  5  C.  &  P.  126.  679 
V.     Jenkins  et  al,  Russell 

&  Ryan  244    685 

V.  Jones,    11    Am.   Cr.    R. 

278    461 

V.  Kelly.  1  Moody  C.  C.  113  C79 
V.  Lee,  Chas.,  1  Leach  C. 

L.    464    691 

V.  Lewis.  4  Ecpinasse  225  369 
V.  Martin,  5  Car.  &  P.  130  672 
V.  Payne,   1   Moody  C.   C. 

378    70 

V.  Pedley,   1   Leach  C.   L. 

242   680 

V.  Poole,  9  Car.  &  P.  728.  438 
V.  Porter,     12      Cox     Cr. 

Cas.  444    70 

V.  Row,  William,  Russ.  & 

Ryan,   153    461 

V.  Taylor.  3  B.  &  C.  502.  680 
V.  Thompson,  1  Moody  C. 

C.    139   679 

V.  Vandercomb,    2    Leach 

C.  L.  76S    680 

V.  Webb,    1    Moody   &   R. 

"405    672 

V.  Westbeer,  Str.  1133...  433 
V.  White,  1    Leach    C.  L. 

286    684 


I  Rex  V.  Woolmer,  1  Moody  Cr. 

!      Cas.  334    70 

Reynolds  v.  State,  147  Ind.  3.  275 
Rhodes    v.     Commonwealth,    48 

Pa,   396    442 

Rhodes  v.  Iowa,  170  U.  S.  412  oS2 
I  Rickabus    v.    Gott,    51    Mich. 

i      227    636 

Ridley's  Case,  2  Campb.  650..  83 
!  Riley  V.  State,  9  Hump.  646.  237 
,  Robbins  v.  Shelby  Co.  Taxing 

I      Dist.,  120  U.  S.  489 588 

1  Robertson    v.    State,    97    Ga. 

I      206    690 

Robinson    v.    State,    25    Tex. 

App.  Ill 170 

Rodgers  v.  State,  50  Ala.  102  696 
Rogers  v.  State,  60  Ark.  76..  614 
Rogers  v.  State,  117  Ala.  9...  413 
Rohan  v.  Sawin,  5  Cush.  281  58 
Rosinski's  Case,  1  Moody  C.  C. 

19   83 

r.oss  V.  Griffin,  53  Mich.  5...  9 
Ross  V.  State,  116  Ind.  495...  718 
Ross  V.  State  (Wyo.),  57  Pac. 

924  375 

Rouch   V.   Great    Western    R. 

R.  Co.,  1  Q.  B.  60 3S0 

Ruis  V.  State,  43  Fla.  186.202,  207 
Rulofl  V.  People,  45  N.  Y.  213.  484 


S. 


Samuel    v.    Payne,    1    Doug. 

358    58 

Sanders    v.  Nicolson,  101    Ga. 

739    643 

Saylor  v.    Commonwealth,    97 

Ky.   190    542 

Schmidt   v.  Mitchell,   101   Ky. 

570    519,  520 

Schoonhoven  v.  Gott,  20  111.  46  606 
Schuster  v.  State,  80  Wis.  107  471 
Scott  V.  State,  49  Ark.  156.132,  133 
Semain's  Case,  Dalt.  Cap.  109 

P.    292    18 

Shadle  v.  State,  34  Tex.  572..  154 
Shanley  v.  Wells,  71  111.  78..  21 
Sheldon  v.  Newton,  3  Ohio  St. 

494   34 

Shepherd    v.    State,    88   Wis. 

185.   11  Am.  Cr.  R.  290 615 

Simmons  v.  People,  150  111.  66  368 
Slaughter-House      Cases,       16 

Wall.   36   593 

Sloan  V.  State,  47  Mo.  604  ..  379 
Slomer  v.  People,  25  111.  70..  29 
Sludall  V.  State,  7  Ga.  2 672 


sx 


AMERICAN  CRIMINAL  REPORTS. 


References  arc  to  pages. 


Smith      V.       Commonwealth 

(Ky.).  17  S.  W.  182 

Smith  V.  State,  52  Ala.  407.. 
Smith  V.  State,   106  Ga.  673, 


489 


482 
323. 
391 

Smith  V.  State,  142  Ind.  288.  275 
Smith  V.  State,  8  Lea.  744..  110 
Smith  V.  State,  33  Me.  48..  478 
Smith  V.  State,  58  Neb.  531.  102 
Smith  V.  State,  19  Tex.  App. 

95  455 

Smith's  Case,  2  C.  &  P.  449..  83 
Smith  V.  People  (Colo.  Sup.), 

8  Pac.  920  626 

Snelling  v.  S*ate,  87  Ga.  50..  5 
Sodusky    v.   McGee,    5  J.    J. 

Marsh  622    541 

Spies  V.  People,  122  111.  1.  472, 
4S4,  485,  492,  507,  524 
Spradly  v.  State,  80  Miss.  82.  464 
Spradley's  Case  (Miss.),  31  So. 

534    229     230 

Spradling'v.'state.'us.  W.  " 

17  84 

state  V.  Ackles,  8  Wash.  462.  94 
V.  Adams,  76  Mo.  355...  558 
V.  Albertson,    113    N.    C. 

633    187 

V.  Alexander,  56  Mo.  131.  722 
V.  Alexis,  45  La.  Ann.  973 

36.5,  366 
V.  Anderson,  86  Mo.  309.  97 
V.  Andrew,  76  Mo.  101 .. .  283 
V.  Baldwin,  45  Pac.  650.  238 
V.  Barrows,  76  Me.  401...  260 

261 
330 
354 
264 
722 
43 
215 
354 
446 


V.  Baiighman,  111  la.  71 
V.  Beatty,  45  Kan.  492.. 
V.  Beckham,  24  S.  C.  284 
V.  Behee,  17  Kan.  402.. 
V.  Belk,  76  N.  C.  10.... 
V.  Belyea,  9  N.  D.  353.. 
v.  Beuerman,  59  Kan.  586 
T.  Blan,  69  Mo.  317. 
V.  Blankenshlp,     21     Mo. 

504    605 

V.  Blossom,  19  Nev.  312.  468 
V.  Bowen,  16  Kan.  476..  236 
V.  Bowers,  94  N.  C.  910.  187 
V.  Brown,  21  Kan.  38...  446 
V.  Bryant,  65  N.  C.  327..  43 
V.  Burnham,  56  Vt.  445..  156 
V.  Carter,  27  N.  J.  L.  499.  237 

V.  Chase,  41  Ind.  356 495 

V.  Chase,  68  Vt.  405 54 

V.  Child,  42  Kan.  611 .. .  199 
■P.  Cleveland,  58  Me.  564.  441 
V.  Coleman,  20  S.  C.  441 . .  455 
7.  Covington,  94  N.  C.  913.  188 


State 

V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


V. 
V. 

V. 
V. 

V. 
V. 

V. 

V. 
V. 
V. 
V. 
V. 

V. 
V. 


V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 


V.  DeLaney,  28  La.  Ann. 

434    96 

Dlerbarger,  9G  Mo.  666  327 
Dlneen,  10  Minn.  411.  233 
Dixon,  114  N.  C.  850.,  220 
Dolan,  17  Wash.  499..  95 
Dooley,  121  Mo.  591..  88 
Dowd,  19  Conn.  388..  442 
Earnest,  98  N.  C.  740.  188 
Epperson,  27  Mo.  255.,  8S 
Ellington,  43  Pac.  60..  46G 
Estaup,     39     La.    Ann. 

219   ccn 

Eubanks,  41  Tex.  021.,  192 
Euzebe,     42    La,    Ann. 

727    360 

Evan!3,   161  Mo.   95 77 

Felter.   32   la.   49    455 

Forsythe,  89  Mo.  667.  283 
Foster,  7  La.  Ann.  255  237 
Foster,  8  La.  Ann.  290  237 
Freeman,  21  Mo.  481.  210 
Freeman,  86  N.  C.  683  31 
Garrett,  60  N.  C.  144 . .  43 
44,  327 
Genz,     57    N.    J,   Law 

459  455 

dessert,  21  Minn.  369.  242 
Gifford,    19    Wash.   464 

(11  Am.  Cr.  R.  13)..,  316 
Goode.  130  N.  C.  651..  464 
Grassle,       74      Mo.      App. 

313  89 

Hammond,  14  S.  D.  545  233 
Hanshew,  3   Wash.   St. 

12  688 

Havens,  95  Mo.  167...  210 
Heathman,  Wright,  690     63 

Hessian,  58  la.  68 305 

Hickam,  95  Mo.  330...  283 
Hill,  48  W.  Va.  132...  700 
Hodges  (Kan.),  26    Pac. 

676  215 

Hull,  73  Mo.  App.  300.  89 
Hunter,  106  N.  C.  796.     13 

22 
Hurst,  4  Idaho  345,.,  449 

450 
Jackson,    3    Pennewlll, 

15    556.  558 

Jefferson  (Del,),  3  Har. 

571   134 

Johnson,  94  N.  C.  863.  187 
Johnson,  30  N,  J.  L.  185  434 
.Tohnson,  1  Vroom.  185  433 
Kornstett,  62  Kan.  221  354 
Lamolne,  53  Vt.  568,  61 
Landgraf,  95  Mo,  97,.  282 


TABLE  OF  CASBS  CITED. 


sd 


References  ao  to  pages. 


State  V.  Larkln.  49  N.  H.  30..  472 

540 
r.  Larkins,  6  Idaho  200..  455 

499 
V.  Lautenschlager,  22 

Minn.  614    G96 

V.  Lewis,  60  Ohio  St.  179 

(9  Am.  Cr.  R.  49)..  23 
V.  Llllle,  21  Kan.  729....  215 
V.  Locklln,  59  Vt.  654....  214 
V.  Maloney,  7  N.  D.  119..  215 
V.  Mnrcks,  3  N.  D.  532...  215 
V.  Martin,  124  Mo.  529...  377 

V.  McCoy,  8  Rob.  545 237 

V.  Mclver,   125   N.  C.   C45  387 

388 

V.  McNInch,  90  N.  C.  695  43 
V.  Medllcott,  9  Kan.  279.  354 
V.  Melton,  37  La.  Ann.  77  360 
V.  Melton,  102  Mo.  687...  88 
V.  Metcalf.   17  Mont.   417.  446 

V.  Meyer,  58  Vt.  457 442 

V.  Miller,  29  Kan.  43....  354 
V.  Montgomery,    9    N.  D. 

405 215 

V.  Moore,   82  N.   C.  659..  188 

V.  Morea.   2    Ala.   275 672 

V.  Morgan,  25  N.  C.  186.  158 
V.  Morgan,    21   Wash.   355 

(11  Am.  Cr.  R.  17)..  316 
V.  Munson,  76  Mo.  109...  210 
V.  Murphy,   45    La.    Ann. 

958    365,  366 

V.  Myers,  8  Wash.  177...  651 
V.  Nash,  109  N.  C.  824...  187 

V.  Neal,  37  Me.  468 134 

V.  Nels,  68  Iowa  469 97 

V.  Nelson,  118  Mo.  126...  283 
V.  O'Brien,  3  Vroom.  169.  433 
V.  Oliver,   2   Houst.   585..     71 

V.  Otto,  61  Kan.  58 354 

V.  Parker,  16  Nev.  79...  702 
V.  Pettlt,  119  Mo.  416....  283 
V.  Phillips,  104  N.  C.  786.  188 
V.  Pigford,  117  N.  C.  748.  221 
V.  Porter,  101  N.  C.  713..  188 

V.  Rapp.  142   Mo.   443 283 

V.  Reams,  121  N.  C.  556..  221 
V.  Redemeier,  71  Mo.  173  455 
V.  Reed.  40  Vt.  603...'...  214 

V.  Roane,  13  N.  C.  58 44 

V.  Russell,  91  N.  C.  624..  188 
V.  Scheie,  52  Iowa  608 .. .  96 
V.  Scott,  41  La.  Ann.  253.  45.^ 

V.  Sears,  86  Mo.  169 88 

V.  Shafer  (Mont),  55  Pac. 

526 451 

V.  Shelledy,  8  Clarke  478  507 


Statt.  V.  Shelly,  98  N.  C.  673..  188 
V.  Shepherd,  88  Wis.  185  414 
V.  Sigman,  106  N.  C.  732.     45 

V.  Slack,  69  Vt.  486 57 

V.  Smith,  32  Me.  369 696 

V.  SnoUgruss,  52  Kan.  174  354 
V.  Southern.   48  La.   Ann. 

628    365,  366 

V.  Stafford,  113  N.  C.  635  188 

V.  Stalcup.  2    Ired.  30 32 

V.  Start.  60  Kan.  256 354 

V.  Striplings,  113  Ala.  120  590 
V.  Strong,  153  Mo.  548...  674 
State    V.    Superior    C'^urt    of 

Snohomish  Co.,  17  Wash.  12  467 
State  V.  Talmage.  107  Mo.  543  283 
V.  Taylor,  118  Mo.  153  (11 

Am.  Cr.  R.) 3C8 

V.  Taylor,  134  Mo.  154...  283 
V.  Taylor  6  O'Donald,   70 

Vt.  1 55,  58,  67,  71 

V.  Thomas,  58  Kan.  806..  354 
V.  Thomas,    62    N.    J.    L. 

532  434 

V.  Thompson,  26  Ark.  325  446 
V.  Treadwell.  54  Kan.  511  354 
V.  Trott.  36  Mo.  App.  29..  627 
V.  Turpln,  77  N.  C.  473..  387 
V.  Van  Cleve,  5  Wash.  642  689 
V.  Walker.  119  Mo.  467..  89 
V.  Williams.  117  Mo.  379.  89 
V.  Woodson,  128  Mo.  497.  494 
Stephens  v.  Myers,  4  C.  &  P. 

349    81,  83 

Stephenson  v.  State,  33  Tex. 

Cr.  R.  162 154 

Stokes    V.     State    (Tenn.),    5 

Baxt.  619  262 

Stone  V.  Mississippi,  101  U.  S. 

814  576 

Story's  Case,  68  Miss.  609 407 

Stout  V.  State,  90  Ind.  10 274 

Strickland    v.    State    (Miss.), 

32  So.  921 401 

Sumter  v.  State,  45  Fla 208 

T. 

Tanner  v.  State,  92  Ala.  1 483 

Taylor  v.  Beckham,    108     Ky. 

278    469 

Taylor  v.  Beckham,    20    Sup. 

Ct.  890   493 

Taylor  v.  People,  12  Hun.  212.  261 

Taylor  v.  Strong.  3  Wend.  384  23 

Teall  V.  State,  22  Ga.  75 332 

Teasley  v.  State,  104  Ga.  738.  3?.T 

391 


XXll 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pagei. 


Telegraph  Co.  v.  Texas.  105  U. 

8.  4G0   o'l 

Terrell  v.  Commonwealth,  13 

Bush.   246    532 

Territory  v.  Davis  (Ariz.)  10 

Pac.   359    362 

V.  Mllroy    (Mont),  20  Pac. 

650    215 

Thomas  v.  Klnkead  (Ark.)  18 

S.  W.  854 75.  77 

Thomas  v.  Klnkead,  55  Ark. 

502  327 

Thomas  v.  State,  100  Ala.  53.  413 
Thomas  v.  State,  91  Oa.  204.3,  321 
Thompson  v.  State,  25  Ala.  41  484 
Thompson  v.  State,  30  Oa.  430  22 
Tillman  v.  Beard,   121  Mich. 

475    12 

Timothy  v.  Simpson,  C.  M.  A 

R.   757    24 

Titus  V.  State,  49  N.  J.  Law 

36  435 

Tracy  v.  State,  44  Tex.  10..  169 
Tracy  v.  Williams,  4  Conn.  107  33 
Trade-Mark  Cases,  100  U.  S. 

82  585 

Traveler's  Ins.  Co.  v.  Mosely, 

8  Wall.  397 361.  378 

Travis  v.  Commonwealth,  96 

Ky.  77    536 

Tully  V.  People,  67  N.  Y.  15. . .  95 
TurberviUe  v.  Savage,  1  Mod. 

3  84 

Turner    v.    Commonwealth,  2 

Metz.  619 517,  518.  520,  523 

Turner  v.  Muskegon  (Mich.), 

50  N.  W.  310 103 

Turner  v.  State,  97  Ala.  57..  697 
Tyler  v.  People,  8  Mich.  320.  237 

u. 

Underwood  v.  State  (Tex.),  29 

S.  W.  777  22C 

United   States  t.   Babcock,   3 

Dill.  623 492 

V.  Clark  (C.  C),  31  Fed. 

710  327 

V.  43  Gallons  of  Whiskey, 

93  U.  S.   188 594 

■  V.  Goldberg,  7  Blss.  175 . .  492 
V.  Gooding,  12  Wheat.  460  454 
V.  Holliday,  3  Wall.  417..  570 
V.  Joint  Traffic  Assn.,  171 

U.  S.   505   579 

V.  Knight  Co.,  B.  C,  150 

U.  S.  1 586 

V.  Lancaster   (C.  C,.),   44 

Fed.   896    508 

V.  Larlvlere,  2;i  L.  ed.  846  594  ' 


United  States    v.    Logan    (C. 

C),  45  Fed.  872 489 

T.  Porter,   3   Day's    Cases 

283   705 

V.  Reid,  12  How.   (U.  8.) 

361 261 

V.  Ross,  1  Oall.  624.. 480,  SOS 
V.  Small,  2  Curt.  243.,..  233 
V.  Stcffens,  25  L.  ed.  552  586 
V.  Trans  -  Mission  Fgt. 
Assn.,  166  U.  S.  290.  579 
UsseltOD  V.  People,  149  111.  612  306 

V. 

Vance  v.  Field,  89  Ky.  178...  518 

520,  523 
Van  Meter  v.  People,    60    III. 

168  428 

Veneman  v.  Jones,  118  Ind.  41      8 

w. 

Wabash,  St.  L.  St  P.  Ry.  Co. 

V.  Illinois,  118  U.  S.  557...  572 
Wade  v.  State,  71  Ind.  535...  ?15 
Wade  V.  State,  35  Tex.  Cr.  R. 

170    688 

Wagner  v.  State,  35  Tex.  Cr. 

R.  255 139 

Wahl  V.  Walton,  30  Minn.  506     15 

23 
Walker  v.  State.  136  Ind.  663  275 
Warrickshall's  Case,  1   Leach 

C.  C.  263   462 

Watklns  v.  State,  89  Ala.  82.  413 
Watson's  Case,    1    Phill.  Ev. 

269  370 

Watts  V.  State,  30  Tex.  App. 

533  137 

Way's  Case,   Sarah,   41   Mlrh. 

299   u    21 

Webb's  Case,  73  Miss.*  *456.*. . '407 
Welton  V.  Missouri,  91  U.   S. 

275  603 

West  V.   State,  21   Tex.   App. 

427    226 

West  V.  Territory   (Ariz.)   36 

Pac.    207    96 

Western     Union    Tel.    Co.    v. 

Pendleton,  122  U.  S.  347..  572 
White  V.  Kent.  11  Ohio  St.  550  32 
White  V.  People.  81  111.  333. . .  316 
Whitman  v.  State,  17  Neb.  224  95 
Wilbur  V.  Flood,  16  Mich.  40.  364 
Wilcox  V.  Williamson,  61  Miss. 

311  34 

Wllkerson  v,  Rahrer,  35  L.  ed. 

572   578,   580 


TAB^B  OF  CASES  CITED. 


xxm 


Retarencei  ar«  to  pagsii. 


Wilkejr      V.      Commonwealth         i  WIIHb  v.  People,  2  111.  399  (6 

(Ky.)  47  S.  W.  221 619        Scam.)    428 

Williams  V.  Boynton,  147  N.  Wixson  v.   People,    6    Parker 

y.  426  495  I      Cr.  R.  119  261 

Williams    V.    Commonwealth.         i  Woodruff  v.  Parham,  8  Wall. 

80  Ky.  313 417  !      123    569 

Williams    V.    Commonwealth,  Wood's  Case,  34  Ark.  341....  134 

90  Ky.  599 617    Wood  v.  State,  64  Miss.  773..   195 

Williams  V.  Pears,  179   U.    8.  Wright  v.  Court  et  al.,  6  Dowl. 

270  589        &  Ry.  623 32 

Williams  V.  State,  81  Ala.  1..  482 

483.  507  «. 

Williams  V.  State,  83  Ala.   16  484  *  • 

Williams  V.  State,   98   Ala.   52  413     „  „^         „^  ^   „. 

Williams  V.  State,  41  Fla.  295  19S    Yeary  v.  State.  66  S.  W.  1106  10b 

201  I  194 

Williams  V.  State,  46  Oa.  212  722  . 

Williams  V.  State,  2  Tex.  App.  **> 

282    672 

Williams  V.  State    (Tex.)     44         i  Zimmerman   v.   State,  4   Tnd. 

S.  W,  1103   457  '      App.  583  275 


Bh 


Su 

porta 
in  or 
indie 

ABA 

ABA 

ABU 

ABD 

ABO 


ACC 


ADU 
AFF 
AGE 
ALU 

ARC 

ARF 
ARS 

ASS 
ASS 


TABLE  OF  TOPICS. 


Subjects  treated  of  In  previous  volumes  of  American  Criminal  Re- 
ports. Roman  numerals  indicate  volume.".,  while  the  pages  are  given 
in  ordinary  figures.  Some  of  the  promiuent  notes  in  late  volumes  are 
indicated  by  brackets. 

ABATEMENT:     VII.  1S8,  202,  220;  XL  1. 

ABANDONMENT:     VII.  7;  IX.  1;  X.  1. 

ABUSE  AND  ABUSIVE  LANGUAGE:     XL  11. 

ABDUCTION:  I.  1,  25,  28;  IV.  1;  V.  1;  VI.  1;  VIL  1;  VIII.  5;  IX. 
:,  20,  23;  X.  3. 

ABORTION:  I.  29;  IL  1,  603;  III.  1;  IV.  6,  15;  VI.  7,  16,  194;  VII.  11, 
345;  VIIL  1,  566;  IX.  28;  X.  9;  XL  3,  4. 

ACCESSORY:  V.  6,  10,  20,  438,  477,  552;  VI.  436,  570;  VIL  22,  568; 
VIII.  19;  X.  419;  XL  13,  17,  19,  20. 

ADULTERY:     I.  34,  42;  IV.  25,  30;  VI.  17;  VII.  58;  X.  13;  XL  23,  24. 

AFFRAY:     VIIL  36;  X.  '0;  XII.  1,  5,  6,  9.  12. 

AGENT:     VII.  152. 

ALIBI:  L  615;  III.  295;  IV.  33;  VI.  21,  85,  209;  VIL  61;  VIII.  207, 
434;  XL  3L  33,  36,  44,  47,  BL  71,  74;  XII.  13,  (19-26),  27,  (28-30), 
30. 

ARGUMENT  OF  COUNSEL:  II.  313;  III.  183,  373;  IV.  38,  91,  338, 
516;  V.  f)!?,  6ni;  VI.  21,  65,  487;  VII.  137,  346,  510,  523;  IX.  23; 
X.  150,  499;  XL  88,  102,  106,  108,  114;  XII.  170,  256,  582. 

ARREST:     I.  287;  IV.  36;  V.  36,  41;  VII.  64,  66;  VIII.  41;  IX.  49,  570. 

ARSON:  L  81,  86,  91;  IV.  38,  42,  43;  V.  43,  48,  52,  71,  107;  VL  33; 
VIL  74,  202;  VIII.  49;  IX.  62,  70;  X.  25,  31;  XL  125,  130. 

ASSAULT,  ASSAULT  AND  BATTERY,  AND  ASSAULT  WITH  IN- 
TENT: I.  46,  56.  57,  59,  60,  65;  II.  176;  III.  4,  6,  9,  154;  IV.  49, 
559;  V.  54,  G25;  VL  37;  VIII.  45;  X.  38,  41;  XL  137,  140,  145,  148. 

ASSATTLT  TO  KILL:  I.  244,  246.  249;  II.  160;  IIL  11,  15,  160;  IV.  62, 
60;  V.  57;  VI.  41.  43.  45;  VIL  80.  84;  VIIL  53;  IX.  73,  80;  X.  46, 
57,  67;  XL  153,  (155-157). 

XXV 


>TTtTftM.  "''  'V'i"rt'''*'<r'ff"''-^ 


xsvi  AMERICAN  CRIMINAL  REPORTS. 

ASSAULT  TO  RAPE:     L  636,  643;  VL  49;  VII.  97.  100;  IX.  448;  X.  C7. 

ATTORNEY  AND  CLIENT:    V.  140;  VII.  11;  VIII.  225,  230. 

BAIL:    VL  55.  61;  VII.  225;  IX.  91,  468,  485;  XL  275;  XII.  32,  34,  35. 

37,  39,  4L  45,  47,  51,  54,  55,  56,  58. 

BASTARDY-  L  67,  70.  71;  IL  177,  178.  606;  IIL  21;  IV.  65;  V.  88; 
VI.  65.  70;  WU.  87;  IX.  117;  X.  90;  XI.  158. 

BIGAMY:     I.  72,  74;  II.  13,  163,  608,  612;  IV.  68;  VIII.  59,  89;  IX.  122. 

139;  XI.  159,  163.  167,  1C9. 
BILL  OF  EXCEPTIONS:     VL  76;  VII.  510;  X.  93;  XL  637. 
BLACKMAIL:     IL  18;  IIL  22;  VII.  101;  VIII.  110. 
BLOOD  STAINS:     IX.  377.  383. 
BOYCOTTING:     V.  90;  VII.  150. 
BODY  STEALING;     VIL  103;  VIII.  100. 

BRIBERY:  IL  23;  IV.  78;  VII.  113;  VIII.  113,  340;  X.  97;  XL  177, 
179. 

BURGLARY:  L  362,  363,  306,  307,  368,  429,  432;  II.  27,  32;  III.  26, 
30,  35;  IV.  83,  90;  V.  61,  93,  94,  96.  lOf,,  594;  VI.  54,  85.  91.  98,  99. 
106;  VIL  126,  262;  VIII.  117;  IX.  145,  343;  X.  135.  140;  XL  192, 
193.  198;  XII.  279  (293.  295,  290,  2D8). 

CHANGE  OF  VENUE:    XL  206,  207,  226,  234. 

CHRISTIAN  SCIENCE:     XI.  238. 

CHARACTER:    VL  508;  VIL  202,  338,  593;  IX.  80,  460;  X.  20. 

CHEAT  AND  SWINDLE:     IX.  158,  705. 

CIRCUMSTANTIAL  EVIDENCE:  IV.  140;  VIL  345;  VIII.  207,  474; 
IX.  377;  X.  547. 

COMBINATIONS  OF  WORKMEN:     IX.  1C9,  195;  X.  240. 

CONCEALED  WEAPONS:  IV.  99;  V.  36;  VI.  110;  VII.  135;  VIII. 
126;  IX.  149;  X.  161. 

CONFEDERATES:    VL  88;  VII.  443. 

CONFESSIONS:  L  29,  32,  171,  173,  178,  182,  272,  293,  315,  317,  323; 
IIL  70,  81,  165,  256;  IV.  104,  417;  V.  43,  107,  366.  443,  477;  VL 
21,206;  IX.  269,  383,  517;  X.  25, 168,  547;  XL  167.  ICS,  192,  207,  250. 
253,  259,  260,  261,  271,  275,  278,  279,  280  (283-295);  XII  59 
(60-81),  82  (84-86).  86  (87-89),  89.  93,  97.  102,  107,  110,  115  'l]9 
122,  125.  128.  135,  137,  143,  146,  149,  154,  ICO,  170,  175,'  183.  '(For 
list  of  Remarkable  Confession  see:  XII.  709.) 


TABLE  OF  TOPICS. 


XXVll 


COXSPIRACY:  I.  103,  105;  II.  33;  III.  37,  50,  54;  IV.  582;  V.  109,  113, 
123,  127,  140,  486;  VI.  112,  570;  VII.  137,  443;  VIII.  131;  IX.  161, 
1C9,  199,  338;  X.  227;  XI.  295. 

COXSTITUTIONAL  LAW:  III.  515,  524,  547;  IV.  16,  100.  Ill,  112,  116, 
166;   V.  162,  166,  172,  178,  181;   VI.  70,  122,  135,  140,  148,  394; 

VII.  32,  210.  291,  509;  IX.  122,  209;  X.  07,  86,  242,  251,  398.  445; 
XI.  303.  320,  324,  330,  346.  349,  355,  356,  713;  XII.  260,  408,  453, 
465,  506.  522. 

COXTEMPT:     L  107;  II.  182,  184,  187;  IV.  134;  V.  192;  VI.  148.  163; 

VIII.  138;  IX.  221;  X.  499;  XI.  298.  303,  318,  320. 

CORPORATIONS:     IV.  137;   IX.  370;   X.  155. 

CORPUS  DELICTI:  I.  308;  IV.  140,  433;  V,  43,  256,  363;  VII.  249, 
399;  IX.  383;  XIL  115,  205  (213-228). 

CORRUPTING  WITNESS:     VL  175. 

COUNTERFEITING:     VIII.  147. 

CRIMINAL  COMPLAINT:  I.  486;  VI.  108;  X.  445;  XI.  355,  356  (36S- 
380).  380   (382-383),  384,  385;  XIL  327   (341),  356   (364-6). 

CROSS  EXAMINATION:     VI.  200,  249,  525;  VIL  377,  528. 

CRUELTY  TO  ANIMALS:     IV.  146;  V.  201;  VIIL  157. 

CUBA:     XII.  408. 

DECOY:     VIIL  123;  XIL  (300-302). 

DEFENSE  OF  HABITATION:      VIIL  5G4. 

DRUNKENNESS:     VI.  178;  VII.  443;  VIIL  165;  IX.  526;  X.  600. 

DUPLICITY:     I.  345;  V.  619;  VL  272;  VIL  113;  VIIL  383. 

DYLXG  DECLARATIONS:  II.  1,  278.  282.  322;  III.  218,  225,  343;  IV. 
152;  VI.  7,  10,  418;  VII.  20,  366;  VIIL  131,  566;  IX.  383,  398; 
X.  276;  XL  447,  484.  487;  XIL  228,  234,  236,  238,  24L  245,  246, 
249,   252,  256,  260    (264-278). 

EMBEZZLEMENT:  I.  146.  153.  156.  157,  166;  II.  107,  109,  111,  114, 
117;  III.  62,  04,  66,  68.  310,  440.  503;  IV.  162.  166,  169,  211; 
V.  203,  210;  VI.  183;  VII.  152;  VIIL  185,  191,  204;  IX.  239,  243, 
256;  X.  283;  XL  386.  389.  39L 

ENTRAPMENT;  I.  413;  VIIL  117,  123;  XL  193;  XII.  279,  283  (293- 
302). 

ESCAPE:     II.  45,  465;  V.  62,  190,  601;   VI.  3L  88,  525;   VIIL  196; 

IX.  711,  719. 


■^mm^^sm-^^^^^'^M.^-^^^M^^'^^it^c.ii^^-M-^.mf^-ri;^,^ 


j_i_ja  rn  I  ■nn 


XXVlll 


AMERICAN  CRIMINAL  REPORTS. 


EVIDENCE:  I.  171,  173,  178,  182,  185,  187,  188,  191,  194,  197,  199, 
206-  II.  56,  58,  61,  67,  75,  187,  198,  290,  313.  380,  393.  404,  442.  506, 
590*  594;  III.  37.  70,  73,  78,  81,  132,  142.  165,  183,  225,  256.  272, 
302!  326,  351,  353,  357,  415,  433;  IV.  15,  38.  52,  127,  178.  181,  183. 
188,'  199,  240,  417,  586;  V.  215,  263,  499,  601;  VI.  17,  197,  200,  212, 
221,  511;  VII.  164.  171.  192.  407.  452;  VIII.  196;  IX.  536;  X.  25, 
168,  227,  292,  489,  499,  547,  606, 

EXCESSIVE  SENTENCE:     II.  486,  487;  VI.  319. 

FXCLUDING  PUBLIC  FROM  TRIAL:     IX.  719. 

EXPERT  EVIDENCE:     XI.  468. 

EXTORTION:     III.  83;  V.  215;  IX.  82,  295,  297;  X.  494. 

EXTRADITION:  I.  169;  II.  201,  215;  IV.  203,  211,  588;  V.  218;  VI. 
222;  VH.  213;  VIH,  236,  241;  IX.  303;  X.  297;  XI,  403;  XII.  303, 
311,  327,  343,  356,  366,  382,  386,  408,  424  (444-453). 

FALSE  PRETENSES:     I.  209,  211,  218,  225;  IL  85,  96,  100,  102,  105, 
228;  in.  85,  92,  98,  100,  433,  444,  458;  IV.  230.  234,  591;  V,  109, 
•     127,  234;  VI.  249,  253,  256,  259;  VII.  179,  184,  304;  VIII,  225,  249, 
259;  IX.  276;  X.  312,  318;  XL  407,  409,  416,  417,  422, 

FLAG  ACT:      XII.  453  (465), 

FORGERY:  L  225,  227,  228,  230;  IL  138,  141.  140,  149,  153;  III.  123. 
125,  132,  142,  357;  IV.  240,  246,  579;  V.  238;  VI.  260,  209,  272; 
VII.  188,  191,  192;  VIII.  201,  279,  283;  IX.  299,  651;  X.  402,  418; 
XL  431,  432,  435,  438,  440.  442. 

FORMER  JEOPARDY:  L  507,  510,  511,  520,  529,  532,  543;  II.  64,  427, 
430,  619,  630.  654;  IIL  143,  149,  154;  IV.  254,  308,  309,  338;  V.  GO. 
339,  486;  VI.  253.  319,  339;  VII.  199.  202.  208,  210,  318;  VIII, 
291;  IX.  719, 

FORNICATION:     II.  159,  161,  165;  IV.  562;  VIIL  297. 

FRAUDULENT  SALE:     V.  242,  245. 

FUGITIVE:     VII.  213;  X.  297. 

GAME  LAWS:    VIIL  302. 

GAMING:  L  232,  233,  234,  237,  240;  IIL  157,  158,  318;  IV.  249;  VI. 
284;  VIL  217;  VIIL  312,  321,  326;  IX.  754;  X.419. 

GRAND  JURY:  IV.  252,  523;  V.  247.  256;  VI.  33,  45,  269.  288.  290,  290, 
307,  511;  VII.  220,  224;  VIIL  329,  338;  IX.  7;  X.  422.  427. 

HABEAS  CORPUS:  L  241,  563;  II.  217,  228,  242,  250;  IV.  16.  116,  134, 
254.  283.  588;  V.  273;  VL  122,  140;  VIL  225,  227,  229;  VIIL  236. 
241.  351.  418;  IX.  303,  651,  702,  711;  XIL  34,  303.  311,  327.  343. 
356,  386,  424. 


I 


TABLE  OF  TOPICS.  xsix 

HABITUAL  CRIMINAL  LAW:     VI.  135;  VII.  237. 
HANDWRITING:     VII.  164;   IX.  276;  X.  318. 
HAWAII:     XII.  405. 

HOMICIDE:  I.  251,  262,  268,  272,  276,  283,  287,  293,  297,  301,  309 
311,  315,  318,  324,  330,  345;  II.  251,  263,  274,  278,  282,  284,  290 
313,  318,  322,  326,  624;  III.  170,  224;  VII.  468;  IX.  313,  320,  324 
587,  622;  X.  463;  XI.  447,  461,  466,  468,  474,  482,  484,  487;  XII 
35,  37,  41,  45,  110,  115,  119,  175,  185,  191,  228,  238,  241. 


HOUSE  OP  ILL  FAME: 
X.  272,  427. 


I.  346,  350,  351;  VL  290;  VIL  492;  VIIL  173 


HUSBAND  AND  w;fE:     II.  332,  336;  IV.  38,  68,  605;   VI.  17,  206 
IX.  3. 

ILLEGAL  RECOMMITMENT  TO  PRISON:     IX.  487. 

INCEST:     I.  354;    II.  329,  331;  III.  236;  IV.  271;   V.  292;  VIII.  364, 
367,  373. 

INDICTMENT:  II.  114,  163,  340,  449,  470,  476,  654;  III.  64,  98,  100, 
132,  290,  329,  399,  405;  IV.  83,  246,  247,  254,  276,  279,  292;  V.  123, 
210,  297,  299,  517,  601,  619,  622;  VI.  7,  296,  293,  307;  VII.  74,  184, 
191,  243,  245.  249,  254,  264,  294,  297,  452;  VIIL  383,  391;  IX.  338, 
343;  X.  318,  547;  XI.  346,  347,  349,  506. 

INQUEST:     IV.  593;  X.  «92. 

INSANITY:  L  297,  358,  359;  IIL  218,  229,  233;  IV.  386.  395;  V.  307; 
VI.  461;   VII.  266,  585,  574;    IX.  348.  626;  X.  57,  320.  585.  606; 

XI.  518,  525.  534   (541-545). 

INSOLVENT  BANK  RECEIVING  DEPOSITS:  IX.  108.  2S4;  X.  71. 
75;  Xn.  552. 

INST^TCTIONS:  II.  326,  469,  482,  583,  586;  III.  233.  260.  295.  297. 
r99.  391.  405;  IV.  52.  293;  V.  43,  318,  320;  VI.  4G2;  VII.  426; 
IX.  436;  X.  25.  57,  463. 

INTERSTATE  COMMERCE:     VL  319;   XII.  506. 

JOHN  DOE  WARRANTS:     XII.   (340-343). 

JUDGE:     I.  173;  IIL  100;  IV.  379;  X.  93,  140,  432,  456;  XI.  545,  713; 

XII.  571,  582,  589.  598,  601,  603,  604,  619. 

JUDGMENT:     VIII.  418;  X.  417. 

JUDICIAL  MISCONDUCT:     XI.  487. 

JURISDICTION:  II.  51,  165;  III.  149;  IV.  1,  16,  65,  157,  211,  320; 
V.  343;  VI.  346;  IX.  406,  468;  X.  71. 

JURORS:     VI.  349,  487,  556,  570;  IX.  517. 

JURORS,  COERCION  OF:     XL  545;  XII.  618. 


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XXX 


AMERICAN  CRIMINAL  REPORTS. 


¥■:! 


K 


i 


n 


JURY:  II.  45,  50,  251,  202.  322.  421.  423,  441.  449,  455;  III.  37,  92,  165. 
225  228,  238,  241;  IV.  312,  357.  375,  415,  527;  V.  20.  43,  62,  105, 
lis'  256.  477,  486,  517,  538,  611;  VI.  33,  307.  349,  436,  487,  534; 
VII.  306.  377,  428,  502;  VIII.  19,  426,  434;  IX.  383,  398,  536,  626; 
X.  46.  75,  138,  242,  347,  397,  398,  499;  XII.  618,  619,  623,  626,  637, 
638,  644,  655,  657,  678.  697. 

JURY  JUDGES  OF  LAW:     IL  50;  III.  37;  VIII.  173;  IX.  536;  X.  168. 

KIDNAPPLXG:     VI.  352;  VIL  314;  VIII.  452. 

LARCENY:  I.  378,  396.  403,  413.  416.  420,  422,  423.  424,  426,  429,  432, 
434.  437.  438,  443.  444.  446;  II.  64.  96.  332.  337,  338,  340,  344.  345. 

349.  356,  362,  372,  638;  III.  246.  248.  250,  253,  256,  260,  264,  272, 
277,  323,  331.  334,  336,  448,  601,  605,  609,  611;  V.  345,  346,  348, 

350.  357.  360,  360;  VI.  183,  355.  388.  392,  397,  402,  403,  407;  VII. 
318,  324,  328,  338;  VIIL  456.  463,  469,  473,  474,  477;  IX.  354,  511, 
536;  XI.  563,  567,  570,  577,  581;  XII.  283,  644. 

LIBEL:     n.  381,  643;  IV.  516;  V.  369;  VIII.  482;  X.  480,  488. 

LIBERTY:     XII.  453. 

LIQUOR  SELLING:  I.  447,  457,  460,  465,  468,  471,  477,  480,  482,  483, 
486,  487,  4S9,  490,  496;  II.  385.  390.  392,  396,  401.  404.  408.  476; 
III.  280.  282,  287;  IV.  300;  V.  322,  323,  324,  329.  330.  332.  330;  VI. 
148.  299,  307,  319,  329,  335;  VII.  237.  291,  297;  VIII.  399,  404.  410; 
X.  337,  341. 

LIVE  STOCK  ACT:     XII.  506. 

MALICE:     IV.  357;  VL  519;  VH.  372;  VIIL  545;  IX.  377. 

MALICIOUS  MISCHIEF:    XL  588,  598   (602,  603). 

MANSLAUGHTER:  III.  207;  V.  377,  379,  381,  3S5,  391,  406;  VI.  418. 
431;  Vn.  345,  3G6;  VIII.  496.  507,  514,  518,  521;  IX.  305,  41C;  XI. 
474;  XIL  119,  228,  24L 

MARRIAGE:     II.  79,  G34.  636;  IX.  408.  412. 

MAYHEM:    II.  631;  VIL  369;  VIII.  532,  543;  XI.  603. 

MISAPPLYING  NATIONAL  BANK  NOTES:     IX.  668. 

MUNICIPAL  ORDINANCES:    XI.  607.  633. 

MURDER:    III.  165,  171.  180,  183,  186,  211,  218.  225,  343,  452;  IV.  36, 

351.  357,  365,  369,  375.  379,  386,  392,  395,  403,  410,  415,  417;  V.  425. 
438.  443.  450,  455,  459.  469.  477.  486.  499.  512,  517,  532,  538,  559; 
VI.  461,  508,  519,  525,  534,  542,  570;  VII.  372,  377,  422.  428.  443. 
462,  545,  566.  574,  602;  IX.  377,  383.  517,  526;  X.  432,  499.  547. 
585.  606;  XIL  35.  41.  45.  110,  115,  175,  185,  19L 

NATIONAL  BANKS:    XII.  522. 


TABLE  OF  TOPICS. 


XXXI 


NEW  Tr-AL:  VI.  33,  253,  349,  487;  VII.  210;  X.  499;  XI.  613,  619, 
623. 

NUISANCE:  IV.  444,  446;  VI.  148;  VII.  469;  VIII.  608,  619;  IX.  73, 
412. 

OBSCENE  LETTER  IN  MAILS:     VITI.  649;  X.  251. 

OBSCENITY:     III.  43G,  464.  470;  IV.  272,  453;  IX.  362. 

ORDINANCES:  IV.  446,  458,  470;  V.  573,  581;  VI.  544,  54S;  VII.  479; 
X.  160;  XI.  607,  633. 

PALMESTRY:     XII.  535. 

PERJURY:  L  497,  500.  502,  504;  II.  410,  416,  650;  III.  292;  IV,  465, 
470,  474  ;V.  588,  591;  VI.  551,  556;  VII.  495,  499;  VIII.  625.  636; 

IX.  421,  426;  XI.  625. 

POLYGAMY:     IX.  408. 

POWER  TO  SUSPEND  SENTENCE:     II.  475;  III.  30;  IX.  651;  X,  96. 

PRACTICE:  I.  507,  510,  511,  520,  529,  532,  536,  539,  542,  543,  545,  552, 
554,  559,  503,  564,  565,  567,  577,  578,  580,  582,  586,  589.  594.  596, 
597,  600,  602,  604,  605,  606,  608,  612,  613.  615,  618.  636;  II.  51, 
421,  423,  424.  427.  430.  441,  442,  446.  448.  454.  465,  470.  475,  476, 
480.  485.  493.  499;  IIL  304,  307,  308,  321,  322,  302;  IV.  476,  477, 
533,  560;  V.  592,  594,  599;  VII.  502,  529,  533,  545,  556,  564;  X. 
445,  456;   XI.  637.  643.  645. 

PRIZE  FIGHTING:     VIII.  656;   XII.  56. 

RAILROADS:     XI.  651. 

RAPE:  I.  646,  650,  655;  II.  583,  586,  589,  590;  III.  330,  379.  386.  391. 
454;  IV.  572;  V.  66,  601.  612;  VI.  49;  VII.  9G,  5G8.  577,  585; 
VIII.  664.  669,  677,  681;  IX.  343.  444.  449;  X.  67,  70.  489,  493; 
XI.  055,  657,  660. 

REASONABLE  DOUBT:  II.  482,  603,  606;  V.  48,  307,  455;  VI.  259, 
436,  462,  550,  570;   VII.  61,  126,  266,  334,  428,  593;   IX.  62,  526; 

X.  57. 

RECEIVING  STOLEN  GOODS:  IV.  338,  534,  541;  V.  619;  VII.  593; 
VIIL  687;  IX.  455,  460;  XI.  330. 

REPRIEVE:     IX.  494. 

RESCUE  OF  PROPERTY  FROM  OFFICER:     IX.  563. 

REWARD:     IX.  578. 

RIGHTS  OF  ACCUSED:  I.  536;  XI.  667;  XII.  175,  589,  606,  616,  626, 
678. 


f} 


xxxu 


AMERICAN  CRIMINAL  REPORTS. 


RIOT:     IV.  542;  V.  622;  VIII.  36;  IX.  582;  XII.  537  (539-541),  542, 

553,  558,  560. 
RESISTING  OFFICER:     III.  11;  IV.  559,  570,  578;  XI.  482,  664. 

ROBBERY:  III.  396;  IV.  555.  501;  V.  625;  VI.  51;  VII.  328,  600; 
VIII.  692;  IX.  310,  504,  587.  590;  XI.  674;  XII.  13,  603. 

SCIRE  FACIAS:    XI.  678.  679. 

SEDUCTION:  I.  6G0;  II.  75.  592,  594;  III.  399,  405,  415;  IV.  562;  VII. 
604;  VIII.  C98;  IX.  606.  614,  617. 

SELF  DEFENSE:  II.  251.  284,  318;  III.  343;  V.  425,  459;  VI.  430, 
519,  538;  VIL  462,  545;  VIII.  30,  496;  IX.  337,  622;  X.  432;  XI. 
140,  681.  CjO;  XII.  5,  238,  241.  249. 

SELF  INCRIMINATION.     IV.  183;    IX.  760;   XI.  695. 
SENTENCE   OF  PERPETUAL   BANISHMENT:     XII    107. 
SEPARATE  SENTENCE:     IX.  651. 
SLANDER:     V.  631;   IX.  656. 
SODOMY:     IX.  658. 

SOLICITING  CRIME  OF  ADULTERY:     IX.  661. 
STATUTES  OF  LIMITATIONS:     IIL  334;  IV.  162;  VI.  414. 
STATUTES,  GENERAL  AND  SPECIAL:     XII.  563  (568-571). 
SUNDAY  LAW:     II.  596;  IV.  570;   V.  629;  IX.  689. 
THEFT:     IX.  734. 

THREATS:  IV.  392,  494;  VL  508,  525,  534;  VII.  202,  462,  467,  468; 
IX.  62;  X.  494;  XII.  228,  616. 

TRESPASS:    V.  373;  VL  416;  X.  38. 

TRIAL:  XI.  700.  713;  XIL  571.  576,  582,  589,  598,  601,  603,  604,  60G, 
608.  616.  618.  619.  623.  626.  631.  634.  637,  638.  644.  655,  657,  678. 
693.  697. 

VAGRANCY:    IX.  735. 

WAR  REVENUE  ACT:    XII.  699. 

VARIANCE:  I.  228.  378.  443.  487.  643;  II.  138.  381.  416,  476,  612; 
III.  21.  246.  290;  IV.  78.  211.  334;  VI.  100;  VII.  191,  243;  IX. 
235;  X.  154,  312;  XL  192.  642;  XII.  110.  146. 

VENUE:  III.  421.  503;  IV.  52,  91,  572,  591;  V.  601;  VI.  259.  418:  IX. 
398,  455,  742;  X.  162,  606. 


TABLE  OF  TOPICS. 


XXXIU 


VERDICT:  II.  631;  III.  18C,  304,  336;  IV.  230,  238,  338,  410,  555; 
V.  247,  332,  339,  538,  599;  VI.  339,  462.  487,  506;  VII.  80,  208, 
254;  VIII.  608;  IX.  746;  X.  41,  89. 

WAIVER  OF  JURY:  I.  565;  III.  238;  IV.  Ill,  574;  V.  178;  VI.  140, 
542;  VII.  306. 

WARRANT:     II.  215,  465;  III.  282;  IV.  429;  VIII.  602;  IX.  49,  56.  61. 

WITNESS:  II.  322;  III.  272,  351;  IV.  252,  357,  579;  VI.  525;  VII.  462; 
VIII.  53,  100;  IX.  530,  754;  X.  20,  31,  46,  57,  139,  242,  249,  318, 
347,  432;  XI.  (174-177);  XII.  46.  175,  279,  535.  576.  616,  631, 
634   (635,  636). 


Note. — The  original  design  of  a  Table  of  Topics  was  to  make  an 
Index  to  the  principal  subjects,  appearing  In  the  headlines  to  reported 
cases;  but  considerable  difficulty  was  experienced  from  the  fact  that 
the  headlines,  having  been  written  by  various  editors,  lack  uniformity. 
The  reader  should  use  the  General  Index  in  Volume  X  in  conaectlon 
with  this  Table. 


HP 


AMERICAN 

CRIMINAL    REPORTS 


Feanklin  v.  Amebson". 

118  Oa.  860—45  S.  E.  Rep.  698. 

Decided  October  31.  1903. 

Abhest  wiTiioirr  a  Warrant:  When  arrests  without  warrants  are 
permitted  by  law — Notice  to  parties  arrested — Hights  of  parties 
arrested — False  imprisonment — Burden  of  proof — Instructions. 

1.  Where  In  an  action  for  1.'  se  imprisonment  the  plaintiff  makes 

out  a  prima  facie  case  of  unlawful  arrest  and  detention,  and  the 
defendant  defends  upon  the  ground  that  he  was  an  oflQcer  author- 
ized to  make  arrests,  and  arrested  the  plaintiff,  for  an  alleged 
misdemeanor,  without  a  warrant,  because  there  was  likely  to  be 
a  failure  of  justice,  for  want  of  an  officer  to  issue  a  warrant, 
the  burden  is  on  the  defendant  to  establish  that  the  circumstances 
were  such  as  to  authorize  him  to  arrest  the  plaintiff  without  a 
warrant.  The  facts  of  the  present  case  rendering  the  above  rule 
applicable  therein,  and,  the  defendant  having  wholly  failed  to 
show  that  there  was  likely  to  be  a  failure  of  justice  for  want  of 
an  officer  to  issue  a  warrant,  the  verdict  in  his  favor  was  con- 
trary to  evidence  and  to  law. 

2.  When  an  officer,  without  a  warrant,  attempts  to  make  an  arrest  for 

an  alleged  misdemeanor,  and  the  person  sought  to  be  arrested 
has  no  notice  that  the  attempt  to  arrest  is  being  made  by  lawful 
authority,  such  person  has  the  right  to  resist  the  attempt  to 
take  him  into  custody,  and  the  arrest,  if  made,  is  illegal. 

3.  While  Civ.  Code  1895,   §   3844,  applies  to  actions    for    malicious 

prosecution,  and  has  no  application  in  a  suit  against  an  officer 
merely  for  unlawful  arrest  and  Imprisonment,  and  acts  of  vio- 
lence accompanying  the  arrest,  yet  where.  In  a  suit  of  the  latter 
character,  the  plaintiff  alleges  that  the  acts  complained  of  were 
done  "without  probable  cause  and  maliciously,"  It  Is  not  erro- 
neous to  give  this  section  In  charge  to  the  Jury. 


For  cases  In  nrevlous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 

Vol.   XIII— 1  1 


AMERICAN  CRIMINAL  RKrORTS. 


4  Civ  Code  ISO.-.,  li  :isr.2.  npi>llo«  only  lo  a  inse  whero  the  Imprison- 
ment lomi.liilneil  of  wns  under  a  warrftnt  defeitlve  in  form,  or 
void  for  want  of  Jiirtsdlctlon.  und  does  not  apply  In  n  euae  where 
the  lmprl«onment  wiis  not  by  virtue  of  any  wurrant  wlmtover. 

(SyllabuH  by  the  Court.) 

Error  to  the  City  (^>urt  of  Miicmi;  Hon.   UoU'rt   lloilgvs, 

.Iu(lf>;t'. 

Suit  of  Carrii-  Franklin  ngainst  W.  S.  Anirrson  an*l  anotluM. 
Tho  ease  was  ilisniissotl  as  to  tlic  other  party  ami  ii  vordirt  and 
jndjrniont  for  tho  (h'lVmlant  Aiiiorson.  Motion  for  a  ni«\v  trial 
ov(«rrulrcl.    Plaint  ill  brini;s  orror.     Kovorstul. 

J.  \\\  Prcsfou,  Sr.,  for  tho  plaint ilT  in  orr(»r. 
Mintcr  Wimbcrly  ami  Jesse  C.  Harris,  ior  the  ilofondunt  in 
orror. 

Fisii,  J.  Carrio  Franklin  brouirlit  suit  apjinst  Aniorson  aiul 
Soizol,  nlloping  that  thoy,  "without  any  provooation  ami  without 
any  prohablo  oanso,  and  nudieioiisly,  and  without  lawful  author- 
ity whatovor,  did  assault  and  Ix'at,  *  *  *  niid  did  oruolly 
bruiso,  injuro,  and  maltroat."  hor,  in  spooiliod  partioulars,  and 
did  arrost  and  take  hor  to  tho  barracks,  ami  havo  lu>r  lookod  up 
and  imprisoned  for  tho  spaoo  of  ouo  iiour.  l>oft>ro  tho  oaso 
canio  on  for  trial,  it  was  sottlod  ;Mid  disniissod  as  to  Soizol. 
\\\wn  tho  oaso  was  triod,  tho  jury  roturnod  a  vordiot  in  favor  of 
tho  dofondant  Amorson.  Tho  plaint ilT  nuulo  a  motion  for  a 
new  trial,  which  was  ovorrulod,  and  she  oxcoptod. 

1.  Wo  are  clearly  of  opinion  that  tho  court  Ixdow  errod  in 
ovorrulluj;  tho  motion  for  a  now  trial.  Tho  plaintitT  was  ontitlod 
to  a  now  trial  upon  tho  j^cnoral  irround  that  tho  verdict  was  con- 
trary to  the  evidence.  The  jilaintHT's  testimony  fully  sustained 
the  alloiiations  of  her  jiotitioii,  and,  if  tho  defendant  had  intro- 
duced no  evidence,  he  could  not  have  leirally  escaped  n  verdict 
in  her  favor.  Her  testimony  put  the  burden  njiou  tho  defend- 
ant of  showing  that  tho  arrest  of  tho  plaintitT,  and  his  acts 
toward  her  in  connection  therewith,  wore  authorized  by  law.  llo 
utterly  failed  to  successfidlv  carrv  this  burden. 

According  to  his  testimony,  ho,  as  a  detective  of  tho  city  of 
Macon,  arrested  the  plaintiff,  and,  despite  a  very  vigorous  and 
desperate  struggle  on  her  jiart  to  prevent  it,  carried  her  to  tho 
police  barracks  and  had  her  locked  up.    lie  admitted  that  Lo 


made  fl 
nient  ot 

Tho  / 
iiu  otlie( 
misdeMK 
in  IiIh  pi 
Law  of 

I'li.loi 
cnnio  Im 
rani,  if  i 
is  rndeii' 
a  faiiurt 
IVn.  ('o( 
III  the 
this  0011  r 

1SS2,  M 

without  1 
uiisdoiiiej 
ioii,  said 
tho  police 
.  iiooting  \ 


1 


hoiiS( 
of  loss  va 
for  u  fel 
no  warrai 
being  so, 
was  reaso 
justice  fo 
With  amj 
was  iiif,,r 
out  for  1 
without  i 
So,  in 
had  no  ri< 
deiiiciinoi 
arrest  wa 
mitted  tlu 
there  was 
to  issue  a 
the  oflicer' 


FIIANKLIN  V.  AMEUSON. 


U 


ninilo  llio  nrri'st  without  any  warrant,  and  upon  tin*  mere  state- 
iiu-nt  of  Sei/el  that  the  phiintilf  had  ntolen  \m  keys. 

'I  he  p'n«'ral  ruU'  whieh  prevails  onlsitU*  of  this  Stale  is  that 
nil  ollicer  has  no  anth(»rity  io  arrest  a  person  for  an  aUe^ed 
iiiisdciiieanor,  without  a  warrant,  uidess  the  otTense  is  eoniniitted 
ill  Ills  presenee  and  amounts  to  a  breaeh  of  the  peace.  llawU\y's 
l.jiw  ot"  Arrtwt,  42. 

I'liilcr  the  hiws  of  this  State,  "an  arrest  nuiy  be  mndo  for  a 
iTiinc  h,v  an  ollieer,  either  niuh-r  a  warrant,  or  without  a  war- 
niiil,  ii"  the  otVeiise  is  eoniniitted  in  his  presenei',  or  the  oiTeuiU'r 
is  tiiileavoriuf;  to  eseape,  or  for  other  eause  there  is  likely  to  l)c 
!i  fiiihire  of  juslieo  for  want  of  an  ollieer  to  issue  a  warrant." 
IVn.  Code,  Jl'sSXJ. 

Ill  the  ease  of  Thomas  v.  Slate.  \)[  (la.,  ii(U,  KS  S.  K.,  liOrt, 
this  eoiirt  eonstrued  these  ]irovisioiia  (then  eontained  in  Code 
lSSi.\  §  IT-Jn  as  lieinj?  applicahle  to  a  ease  in  whi<'h  an  oHiei'r, 
willioiit  a  warrant,  alt«'nipts  to  niak<»  an  arrest  for  an  alleged 
jiiisdeiiieanor.  Chief  .lustiee  Hleekley,  wlio  (h'livered  the  «)pin- 
ioii,  said:  '*Tlie  evidenee  indicates  that  the  olTenso  for  whieh 
llie  polieenian  was  endeavoring!;  to  arrest  th«'  accused  when  the 
.  Iiootiiij;;  occurred  was  larceny  of  iiioney  and  property  from  tiie 
house.  If  this  was  the  oiTense,  and  if  the  elTects  stolen  were 
of  less  value  than  fifty  dollars,  the  arrest  eonlciiiplated  was  not 
for  a  felony,  but  for  a  misdemeanor  only.  The  policeman  had 
no  warrant,  nor  was  the  offense  committed  in  his  presence.  This 
beinj;  so,  he  had  no  leijal  authority  to  make  any  arrest,  unless  it 
was  reasonably  proper  to  do  so  in  order  to  ])revent  a  failure  of 
justice  for  want  of  an  officer  to  issue  a  warrant.  Code.,  5|  472J3.. 
With  ample  time  and  opportunity  to  obtain  u  warrant  after  ho 
was  infi-rmed  of  the  oiTense,  and  before  he  eomnii'iiced  lookini!; 
out  for  the  ofTeiider,  the  policeman  had  no  ri^ht  to  preceded 
without  it." 

So,  in  the  case  under  co  isidcration,  Amcn.on,  the  defendant, 
had  no  ri<;lit  whatever  te  arrest  tbe  plaintiff  for  an  alle,a:ed  niis- 
deuieanor,  without  a  warrant,  unless  the  offense  for  which  tho 
arrest  was  made  was  committed  in  bis  ^iresence,  or  she  had  com- 
mitted the  offense  chared  and  was  endeavorinj;  to  escape,  or 
there  was  likely  to  Ix^  a  failure  of  justice  for  want  of  an  ofHeer 
to  issue  a  warrant.  No  offense  whatever  had  been  committed  in 
the  ofTicer's  presence,  and,  we  may  add,  the  evidence  failed  to 


4  AMERICAN  CRIMINAL  REPORTS. 

show  that  the  plaintiff  had  committed  any  offense  at  all.    Eveu 
if  she  had  connnittcd  the  alleged  offense,  she  was  not  endeavor- 
ing to  escape  when  the  arrest  Avas  made.     The  defense  upon 
which  the  defendant  relied  was  that,  under  the  circumstances, 
there  was  likely  to  he  a  failure  of  justice  if  he  did  not  make 
the  arrest  without  a  warrant.    It  was  incumbent  upon  him  to 
( stablish  this  defense,  and  this  he  utterly  failed  to  do.     There 
was  not  a  particle  of  evidence  which  even  tended  to  shoAv  that 
it  was  necessary,  in  order  to  prevent  a  failure  of  justice,  to 
make  the  arrest  without  a  warrant.    Irrespective  of  the  fact  that 
the  evidence  failed  to  show  that  any  offense  had  been  committed, 
the  testimony  of  the  defendant  himself  showed  that  when  Seizel 
went  to  him  and  requested  him  to  arrest  the  plaintiff — stating 
that  she  had  stolen  his  keys — the  plaintiff  was  at  Seizel's  home, 
engaged  in  his  domestic  service,  and  that  Seizel  exjwcted  her 
to  remain  there  until  the  oflicer  came  and  arreste<l  her,  for 
he  told  the  defendant  to  go  to  his  (Seizel's)  house  and  make  the 
arrest.    The  testimony  further  showed  that  this  exjiectation  of 
Seizel  was  fully  justified  by  the  conduct  of  the  plaintiff,  as 
fhe  remained  at  Seizel's  house  until  the  defendant  came  to 
arrest  her,  and  then  offered  to  be  searched,  and  to  accompany  the 
defendant  to  her  house,  in  order  that  he  might  search  that.  Why 
Seizel,  or  the  officer,  did  not  obtain  a  warrant  before  proceed- 
ing to  the  house  to  make  the  arrest,  does  not  appear.    So  there 
was  nothing  whatever  to  show  that  Seizel  or  the  defendant 
could  not  have  readily  obtained  a  warrant  before  the  arrest 
was  made.    Indeed,  we  apprehend  that  it  would  be  rather  diffi- 
cult to  prove  that  in  the  forenoon  of  the  day,  and  in  a  city  like 
Macon,  a  warrant  could  not  have  been  easily  and  speedily  pro- 
cured ;  and,  even  if  it  had  been  shoAni  that  to  (,btain  a  warrant 
would   have  involved   considerable   delay,    the    circumstances 
shown  by  the  evidence  Avere  not  such  as  to  indicate  any  neces- 
sity for  making  the  arrest  Avithout  it.  • 

2.  The  arrest  of  the  plaintiff  and  the  acts  of  violence  toAvard 
her  Avith  Avhich  it  Avas  accompanied  Avere  unlaAvful  for  another 
reason.  To  make  an  arrest  laAA'ful,  it  is  necessary  that  the  per- 
son arrested  should,  in  some  way,  have  notice  that  he  is  arreste.l 
by  lawful  authority.  He  may  have  this  notice  from  the  fact 
that  he  knows  the  person  making  the  arrest  to  be  an  officer,  or 
by  seeing  his  uniform  or  badge  of  office,  or  by  being  arrested 


Vdkai 


FRANKLIN  v.  AMERSON. 


5 


Avliilo  committing  a  breach  of  the  peace  or  other  crime,  or  by 
the  person  making  the  arrest  giving  notice  of  his  purpose  and 
tlio  reason  for  it,  or  by  being  immediately  pursued  from  the 
gcone  of  his  crime.  Ilawley's  Law  of  Arrest,  15-16,  and  cases 
cited.  In  the  present  case  it  appears  from  the  evidence,  that 
the  plaintiff  did  not  know  the  defendant,  or  that  he  was  an 
officer ;  that  ho  did  not  have  on  any  uniform,  and  while  he  wore 
his  official  badge  it  was  concealed  under  the  lapel  of  his  coat 
and  was  not  shown  to  the  plaintiff,  nor  was  she  told  by  him  that 
he  was  an  officer.  So  he  occupied  no  better  position,  in  attempt- 
ing to  make  the  arrest,  than  a  mere  private  person  who,  with- 
out a  warrant,  attempts  to  arrest  another  person  for  an  alleged 
misdemeanor.  Snelling  v.  Slate,  87  Ga.,  50,  53 ;  13  S.  E.  Kep., 
lo-l;  Jones  v.  State,  114  Ga.,  73,  39  S.  E.  Rep.,  861.  A 
]n-ivate  ])crson  has  no  authority  to  make  an  arrest  for  a  mis- 
(Icnieanor,  unless  the  offense  is  committed  in  his  presence  or 
within  his  innnediate  knowledge.  Penal  Code,  No.  900.  But 
if  the  offense  is  a  felony,  and  the  offender  is  escaping,  or 
attempting  to  escape,  a  private  person  may  arrest  upon  reason- 
able and  probable  grounds  of  suspicion.  Id.  As  a  private  per- 
son, under  the  circumstances  disclosed  by  the  evidence  in  this 
case,  would  have  had  no  right  to  arrest  the  plaintiff,  the  defend- 
ant, who  occupied  no  better  position,  had  no  right  to  do  so. 
The  plaintiff  had  the  right  to  resist  the  unlawful  attempt  to 
arrest  her.  Even  if  the  fact  be,  as  testified  by  the  defendant, 
that  the  plaintiff  at  first  offered  to  go  along  with  him  and  actu- 
ally accompanied  him  a  short  distance  from  Seizel's  house,  it 
does  not  necessarily  show  that  she  voluntarily  submitted  to 
arrest  by  him.  It  is  not  inconsistent  with  her  statement  that 
she  offeretl  to  accompany  him  to  her  house,  in  order  that  he 
might  search  it.  lie  does  not  appear  to  have  put  his  hands  upon 
her,  or  to  have  told  her  she  was  under  arrest,  until  she  refused 
to  accompany  him  further.  But  even  if  she  did,  at  first,  agree 
to  go  with  the  <'  fendant  to  the  police  baiTacks,  she  had  the 
right  to  withdraw  her  consent  to  do  so,  and  the  violence  which 
he,  Avhen  she  declined  to  follow  him  further,  used  toward  her 
for  the  purpose  of  carrying  her  to  the  police  barracks  and  hav- 
ing her  locked  up,  was  wholly  unjustifiable. 

3.  The  court  gave  in  charge  to  the  -jury  sections  3844  and 
3852  of  the  Civil  Code,  and  in  the  motion  for  a  new  trial  this 
is  assigned  as  error,  the  specific  assignment  being  that  the  pro-" 


i  I 


! 


*;!: 


6  AMERICAN  CRIMINAL  REPORTS. 

visions  of  these  sections  were  not  applicable  to  the  case.  The 
first  of  these  sections  applies  to  suits  for  malicious  prosecution. 
It  immediately  follows  the  section  which  declares:  "A  crim- 
inal prosecution,  maliciously  carried  on,  and  without  probable 
cause,  whereby  damage  ensues  to  the  person  prosecuted,  gives 
him  a  cause  of  action."  Xo.  3843.  It  provides :  ''Want  of 
probable  cause  shall  be  a  question  for  the  jury,  under  the  direc- 
tion of  the  court,  and  shall  exist  when  the  circumstances  are 
such  as  to  satisfy  a  reasonable  man  that  the  accuser  had  no 
ground  for  proceeding  but  his  desire  to  injure  the  accused." 
This  section  has  no  application  to  a  suit  against  an  officer  merely 
for  unlawfully  arresting  and  imprisoning  the  ])]aintift",  and  for 
acts  of  violence  accompanying  the  arrest;  and  if  the  plaiutitf 
had  confined  the  allegations  of  her  petition  to  such  as  were  nec- 
essary to  make  such  a  case,  it  would  have  been  erroneous  for 
the  court  to  have  given  the  law  of  this  section  in  charge  to  the 
jury.  While  the  facts,  as  shown  by  the  evidence,  do  not  involve 
a  criminal  prosecution  of  the  plaintiff  by  the  defendant,  Araer- 
son,  yet  as  the  plaintiff  in  her  petition  alleged  that  the  acts 
complained  of  were  done  by  him  "without  probable  cause  and 
maliciously,"  we  can  not  say  that  the  court  erred  in  giving  this 
section  in  charge. 

4.  It  was,  however,  erroneous  to  charge  section  3852. 
While  this  section  applies  to  actions  for  false  imprisonment,  it 
applies  only  to  im])risonmont  under  a  Avarrant  which  is  defec- 
tive in  form,  or  void  for  want  of  jurisdiction.  It  has  no  appli- 
cation whatever  to  a  case  in  which  the  arrest  or  imprisonment 
was  not  by  virtue  of  any  Avarrant,  good  or  bad. 

Judgment  reversed.    All  the  Justices  concur. 

Note  (by  J.  F.  G.).— A  feature  of  this  opinion  worthy  of  notice  Is, 
that  as  stealing  property  of  less  value  than  fifty  dollars,  In  Georgia, 
Is  not  a  felony,  the  common  law  right  to  arrest  for  felonies  without 
written  process,  does  not  apply  to  such  cases. 


TILLMAN  V.  BEARD. 


Tillman  v.  Beard. 

121  Mich.  475—80  N.  W.  Rep.  248. 
Decided  October  3,  1899. 

Abbest:  Arrest  without  warrant  for  violation  of  a  municipal  ordi- 
dinance — Arrest  upon  a  warrant  upon  a  charge  of  violating  a  void 
ordinance. 

1.  An  arrest  without  a  warrant,  Is  only  permissible  in  cases  of  felony 

or  breaches  of  the  peace. 

2.  An  arrest  without  a  warrant  for  a  violation  of  an  ordinance,  upon 

a  matter  not  liable  to  disturb  the  peace  on  the  street,  and  there 
being  no  emergency  demanding  such  arrest,  is  illegal  and  ren- 
dere  the  officer  liable  for  the  consequences. 

3.  A  prosecution  by  complaint  and  warrant  based  upon  a  void  munici- 

pal ordinance,  if  made  In  good  faith,  does  not  render  the  com- 
plainant, or  the  magistrate  issuing  the  warrant,  liable  in  damages. 

Error  to  Circuit  Court,  Shiawassee  County ;  Hon.  Stearns  F. 
Smith,  Judgo. 

Suit  by  A.  Adclbort  Tillman  against  Abraham  L.  Bcfird. 
Judgment  for  the  defendant.  Plaintiff  brings  error.  Reversed. 

The  plaintiff  who  was  a  vendor  of  pop  corn  and  peanuts  had 
a  machine  five  feet  two  inches  long,  two  and  a  half  feet  wide 
and  about  five  and  a  half  feet  high,  operated  by  steam  gener- 
ated by  a  gas  burner.  He  had  obtained  permission  from  a 
merchant  in  the  village  of  Morrice  to  have  a  stand  in  the  street 
in  front  of  the  merchant's  store.  There  was  a  village  ordinance 
against  carrying  on  such  business  without  a  license.  lie  had 
failed  to  take  out  a  license.  The  defendant,  who  was  president 
of  the  village,  finding  the  plaintiff  located  as  above  and  oper- 
ating without  a  license,  seized  the  machine  and  ran  into  the 
street  and  ordered  the  marshal  to  arrest  the  plaintiff,  which  was 
done.  Plaintiff  was  confined  in  jail  three  hours  and  then 
released ;  but  was  re-arrested  upon  complaint  and  warrant  and 
convicted.  He  appealed  to  the  Circuit  Court  where  a  nolle 
proscqxii  was  entered  upon  the  ground  that  the  ordinance  was 
void.  When  the  plaintiff  rested  his  case  on  the  present  suit  for 
damages,  the  Court  directed  a  verdict  for  the  defendant.  (J.  F. 
G.)    ^ 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


8 


AMERICAN  CRIMINAL  REPORTS. 


John  T.  McCurdy,  for  the  appellant. 
Watson  &  Chapman,  for  the  appellee. 

Grant,  C.  J.  (after  stating  the  facts).  The  declaration  con- 
tains four  counts,  and  allcgos  assault  and  battery,  false  impris- 
onment, and  malicious  prosecution. 

1.  The  first  arrest,  without  a  complaint  and  warrant,  was 
illegal.  Officers  arc  justified  in  arresting  without  a  warrant 
only  in  cases  of  felony  and  breaches  of  the  peace.  This  is  ele- 
mentary. It  is  needless  to  cite  authorities.  Plaintiff  was 
engaged  in  no  act  dangerous  to  the  public,  or  liable  to  cause 
disturbance  upon  the  streets.  The  act  was  not  malum  fer  tie. 
but  only  malum  prohibitum.  There  was  no  danger  of  escape. 
There  was  no  obstruction  in  the  public  highway  reijuiring 
immediate  removal  for  the  convenience  of  the  public.  The 
respondent  may  have  acted  in  good  faith  in  ordering  the  arrest 
of  plaintiff,  but  he  certainly  acted  hastily,  and  witiiout  any 
legal  authority.  The  statute  did  not  give  him,  as  conservator  of 
the  peace,  the  authority  to  imprison  citizens  of  the  village  in 
this  summary  manner.  By  ordering  the  arrest,  he  made  him- 
self responsible  for  it,  and  liable  for  all  its  consequences.  Webb, 
Pol.  Torts,  2G4,  and  authorities  there  cited ;  Veneman  v.  Jones, 
118  Ind.,  41,  20  N.  E.,  644;  Gilbert  v.  Emmons,  42  III,  143. 

2.  The  village  was  organized  under  Act.  Is'o.  3,  Pub.  Acts 
1895.  By  section  2,  c.  4,  of  said  act,  the  president  of  a  munici 
pality  is  made  a  conservator  of  the  peace.  lie  is  the  chief  exec- 
utive of  the  village,  and,  as  such,  it  Ix^comes  his  duty  to  3ee  that 
the  ordinances  of  the  village  are  enforced.  We  held  in  Brookfi 
V.  Mangan,  86  Mich.,  576,  49  N.  W.,  633,  that  neither  a  justice 
of  the  peace  issuing,  nor  the  officer  serving,  a  warrant  under  a 
void  ordinance  was  liable.  The  reasons  for  such  rule  are  there 
fully  stated.  For  the  same  reason,  an  officer  who  in  good 
faith,  makes  a  complaint  in  the  belief  that  the  ordinance  is 
valid,  is  not  liable.  A  party  in  good  faith  making  a  complaint 
for  the  violation  of  any  law  or  ordinance  is  not  required  to  take 
the  risk  of  being  mulcted  in  damages  if  courts  afterwards  hold 
it  unconstitutional.  This  rule  is  dictated  by  the  plain  princi- 
ples of  public  policy.  In  Maries  v.  Townsend.  97  N.  Y.,  590, 
it  is  said: 

"This  rule  of  exemption  is  founded  in  public  policy,  and  is 


TILLMAN  V.  BEARD. 


applicable  alike  to  civil  and  criminal  remedies  and  proceed- 
ings, that  parties  may  be  induced  freely  to  resort  to  the  courts 
and  judicial  officers  for  the  enforcement  of  their  "ights  and  the 
remedy  of  their  grievances,  without  the  risk  of  undue  punish- 
ment for  their  own  ignorance  of  the  law  or  for  errors  of  courts 
and  judicial  officers." 

If  the  officer  is  protected  in  the  serving  of  the  warrant,  in 
which  act  lie  is  performing  a  duty  imposed  upon  him  by  law, 
why  should  he  not  be  equally  exempt  where  he  is  in  the  per- 
fornumce  of  his  duty  in  making  complaint  for  the  violation  of 
an  ordinance  of  his  municipality  ?  I  think  the  reason  of  the 
alHwe  case  covers  this.  I  have  not  found  a  case  where  a  police 
ollicer,  or  an  officer  charged  with  the  duty  of  enforcing  the  law, 
has  made  a  complaint.  I  find,  however,  many  cases  involving 
the  liability  of  persons  making  criminal  complaints,  and  thus 
causing  arrests.  In  Iloss  v.  Griffin,  53  Mich.,  5,  18  X.  W.,  534, 
phiintiif  was  arrested  on  a  writ  of  commitment  for  contempt. 
The  writ  was  issued  by  the  judge  of  the  superior  court  of  the 
city  of  Detroit  iipon  the  motion  of  the  solicitors  for  the  com- 
plaint in  the  suit  against  Ross.  lie  was  diseliargcd  by  this 
court  upon  a  writ  of  habeas  corpus,  the  court  holding  that  the 
conunitnicnt  was  erroneous.  This  court  held  that  neither  the 
judge  nor  the  solicitors  who  jirocured  the  commitment  were 
liable  in  an  action  for  false  imprisonment,  the  record  showing 
that  they  acted  in  good  faith. 

WJicre  a  party  had  been  arrested  under  a  statute  afterwards 
held  to  bo  unconstitutional,  and  thereby  the  magistrate  had  no 
jurisdiction,  and  the  process  was  void,  the  court  say: 

"The  authorities  are  conclusive  that,  wIr'u  a  person  does  no 
more  than  to  prefer  a  complaint  to  a  magistrate,  he  is  not  liable 
in  trespass  for  acts  done  under  the  warrant  which  the  magis- 
trate thereupon  issues,  even  though  the  magistrate  has  no  juris- 
diction. If  the  complaint  is  malicious,  and  without  j)robable 
cause,  the  complainant  may  be  answerable  under  another  form 
of  action."  Barker  v.  Sletson,  7  Gra^  53.  and  authorities  there 
cited. 

This  case  is  cited  with  approval  in  Lang  ford  v.  Railroad  Co., 
144  Mass.,  431,  11  N.  E.,  697. 

^^^lere  the  judge  has  determined,  in  the  exercise  of  the  juris- 
diction committed  to  him  by  the  law,  that  the  affidavit  was  suffi- 


10 


AMERICAN  CRIMINAL  REPORTS. 


cient  to  entitle  the  party  to  the  writ,  it  is  said :  "To  hold  that 
such  party  is  liable  in  damages  for  the  erroneous  judgment  of 
the  judge  would  impose  on  him  a  responsibility  not  warranted  by 
law."  Dusy  v.  Helm,  59  Cal.,  188.  In  Loomis  v.  Bender,  48 
Ilun,  268,  defendant  was  held  liable  for  false  imprisonment, 
where  ^le  drew  the  complaint,  had  it  signed  by  another,  took 
it  t'  ■  justice,  filled  up  the  warrant,  gave  it,  signed  by  the 
ji.t-  .  t^.  ^'-e  constable,  and  ordered  the  arrest  of  plaintiff  at 
ai'\  oust,  xt  is  there  said:  "The  defendant  would  not  have 
beer  liable  if  lie  had  only  presented  the  complaint  to  the  jus- 
tice, and  ^'sked  ■',  •  a  warrant,  if  he  had  done  so  in  good  faith 
and  without  mnlif'^"  In  Carratt  v.  Morley,  1  Q.  B.,  18,  it  was 
he.d  "that  a  party  who  merely  originates  a  suit  by  stating  his 
case  to  a  court  of  justice  is  not  guilty  of  trespass,  though  the 
proceedings  should  be  erroneous  or  without  jurisdiction."  That 
case  Avas  brought  against  Morley,  who  instituted  the  suit,  and 
the  olKci  I's  who  issued  the  process  for  arrest.  See  Add.  Torts, 
marg.  p.  148.  In  Murphy  v.  Walters,  34  Mich.,  180,  it  was 
said: 

"A  person  who  simply  lays  facts  l)efore  a  magistrate,  and 
leaves  all  further  action  to  the  unbiai;'^d  and  unsolicited  con- 
duct of  the  latter,  is  not  liable  in  trespass  for  false  imprison- 
ment, unless  ho  takes  some  part  in  furthering  the  arrest  or  urg- 
ing detention." 

Where  a  party  was  arrested  under  a  void  act  of  the  legisla- 
ture, the  court  say: 

"It  seems  to  us  that  the  mere  fact  that  the  defendant  made 
the  affidavit,  under  the  circumstances,  is  not  enough  to  warrant 
the  court  in  ruling,  as  a  matter  of  law,  that  he  was  liable  for  th3 
imprisonment."    Fenelon  v.  Butts,  49  Wis.,  342,  .5  N.  W.,  784. 

See  also  Gelzerdeuchter  v.  Nicmeyer,  64  W^is.,  321,  25  X.  W., 
443. 

It  is  stated  in  the  American  and'  English  Encyclopedia  of 
Law,  Vol.  12  ([2d  Ed.]  p.  756,  note  5) : 

"The  true  rule  is  believed  to  be  this :  Though  the  warrant 
on  which  the  arrest  was  made  is  invalid  for  insufficiency  of  the 
affidavit,  the  affiant  is  not,  however,  liable  in  false  imprison- 
ment, unless  he  participated  in  the  issuance  or  execution  of  the 
warrant  beyond  the  mere  making  of  the  affidavit." 

A  case  precisely  in  point  is  Gifford  v.  Wiggins,  50  Minn., 


TILLMAN  V.  BEARD. 


11 


401,  52  N.  W.,  904.  Plaintiff  was  arrested  under  a  void  ordi- 
nance, upon  the  complaint  of  the  defendant,  who,  so  far  as  the 
record  shows,  was  a  private  citizen.  The  ordinance  was  after- 
wards held  to  be  absolutely  void,  but  the  defendant  was  held 
not  liable  for  false  imprisonment.    It  is  there  said : 

"It  seems  to  be  settled  by  an  almost  unbroken  line  of  authori- 
ties that  if  a  person  merely  lays  a  criminal  complaint  before  a 
magistrate  in  a  matter  over  which  the  magistrate  has  a  general 
jurisdiction,  and  the  magistrate  issues  a  warrant,  upon  which 
the  person  charged  is  arrested,  the  party  laying  the  complaint 
is  not  liable  for  an  assault,  and  false  imprisonment,  although 
the  particular  case  may  be  one  in  which  the  magistrate  had  no 
jurisdiction." 

Judgnicnt  reversed,  and  new  trial  ordered. 

The  other  justices  concurred. 

Notes  (by  J.  F.  G.). — The  doctrine  announced  In  the  above  decision, 
that  arrests  without  warrants,  is  only  permissible  In  cases  of  emer- 
gency is  In  accord  with  Sarah  Way's  Case,  41  Mich.  299,  which  case 
is  reviewed  in  the  notes  in  the  next  case  of  the  present  volume,  (p.  21.) 

This  subject  is  also  treated  of  in  the  first  and  third  cases  of  this 
volume. 

Arrests  made  upon  void  ordinances,  etc.  The  doctrine  announced  in 
the  above  case  (Tillman  v.  Beard),  that  an  officer  or  complainant  is 
not  liable  for  damages  for  proceeding  under  a  void  act  of  the  legislature 
or  void  city  ordinance.  Is  at  least  subject  to  criticism  and  great  doubt. 

The  Court  seems  to  base  its  decision  upon  "good  faith"  on  part  of 
the  complainant  or  officer,  and  on  an  erroneous  conception  of  the  term 
"law."    The  Court  says: 

"A  party  in  good  faith  making  a  complaint  for  the  violation  of  any 
laiv  or  ordinance  is  not  required  to  take  the  risk  of  being  mulcted  in 
damages  if  Courts  afterward  hold  it  unconstitutional." 

It  Is  difficult  to  understand  how  any  law  qan  be  unconstitutional;  or 
how  that  which  is  unconstitutional  can  be  in  any  sense  termed  a  laio. 

A  law  is  an  authoritative  rule,  governing,  controlling  or  limiting  the 
actions  of  mankind.  That  which  is  not  authoritative  and  operative, 
IS  not  a  law.  The  Constitution  is  the  supreme  law  of  the  land,  and  is 
the  charter  by  which  the  Legislature  exists  and  operates.  An  act  of 
the  Legislature  in  violation  of  the  Constitution  is  void,  because  it  is 
in  violation  of  law,  and  is  not  authorized  by  the  charter  through  which 
the  Legislature  acts.  Such  an  act  had  in  its  inception  no  legal  vitality; 
and,  by  being  Judicially  declared  unconstitutional,  loses  none.  The 
judicial  branch  of  the  Government  must  respect  all  the  existing  laws 
of  the  land.  It  has  no  repealing  power.  When  it  declares  an  act  of 
the  Legislature  unconstitutional,  it  simply  ignores  the  act  as  being 
void;  as  not  being  a  law  and  leaves  it  with  no  less  vitality;  for  that 


12 


AMERICAN  CRIMINAL  REPORTS. 


which  was  never  Infused  with  life  has  none  to  lose.  Certainly  the 
Court  would  not  hold  that  a  complainant  or  oflBcer  could  plead  such 
void  act  or  ordinance  In  Justification  for  an  arrest  or  prosecution  made 
or  Instituted  after  the  act  or  ordinance  was  Judicially  declared  uncon- 
stitutional; yet  if  the  Judicial  branch  of  the  Government  has  no  re- 
pealing power  and  the  act  or  ordinance  loses  nothing  by  the  decision, 
why  should  such  plea  then  be  rejected?  It  may  be  said  that  after  the 
Court  Ignores  the  act,  good  faith  is  no  excuse,  but  every  one  Is  pre- 
sumed to  know  the  law  and  "ignorance  of  the  law  Is  no  excuse." 

Gcod  faith  and  ignorance  of  the  law  Is  not  a  defense  to  a  prosecu- 
tion for  a  violation  of  a  valid  penal  statute;  yet  the  Court,  In  Tillman 
17.  Beard,  holds,  that  trespassers  are  not  liable  for  making  unlawful 
arrests  or  Instituting  unlawful  prosecutions,  under  void  acts  of  the 
Legislature,  or  void  city  ordinances,  until  the  Judiciary  has  proclaimed, 
that  which  all  are  presumed  io  know. 

This  question  came  before  the  Supreme  Court  of  Minnesota  In  1871 
In  the  case  of  Judson  v.  Riordon,  IC  Minn.  431.  The  plaintiff  In  the 
Court  below  had  obtained  a  judgment  for  $800.00,  in  an  action  for  false 
Imprlsoiirrient  for  a  period  of  two  hours  and  a  half.  The  defendant 
attempted  to  Justify  under  a  section  of  the  ordinances  of  the  City  of 
St.  Paul,  which  section  was  as  follows: 

"All  persons,  who  at  a  fire  shall  refuse  to  obey  any  order  or  direc- 
tion given  by  any  person  duly  authorized  to  order  or  direct,  or  who 
shall  resist  or  impede  any  officer  or  other  person  In  the  discharge  of 
his  duties,  jhall  in  the  absence  of  sufficient  excuse,  be  punished  by  a 
fine  not  exceeding  $50.00.  Any  n\ember  of  the  common  council,  or  any 
fire  warden,  may  arrest  and  detain  such  person  in  his  custody  until 
such  fire  is  extinguished." 

The  Court  held  the  last  clause  of  the  section  void,  and  said: 

"We  have  seen  that  the  ordinance  was  void;  therefore  the  arrest 
was  none  the  less  Illegal,  therefore,  none  the  less  malicious,  bcause  the 
defcndfint  Intended  to  act.  or  did  act  under  it" 

Later  in  the  opinion  the  Court  said: 

"If  the  defendant  acted  without  authority  of  law  In  arresting  and 
detaining  plaintliT,  the  implication  of  malice  is  not  rebutted  by  proof 
that  he  supposed  himself  to  be  proceeding  legally, 

"It  is  no  defense  to  the  action,  though  it  may  be  evidence  In  mitiga- 
tion of  damages.    Sedg.  on  Damages,  528." 

In  the  case  of  Darst  et  al.  v.  People,  51  111.  286,  the  plaintiffs  in  error 
sought  to  reverse  a  conviction  for  riot.  It  appeared  from  the  evidence 
in  the  Court  below  that  the  plaintiffs  in  error,  two  of  whom  were  po- 
licemen, and  the  others  trustees  of  the  town  of  Eureka,  Woodford 
County,  Illinois,  had  broken  Into  the  grocery  of  one  Moustler  and  taken 
therefrom  several  kegs  of  whiskey  and  beer  and  conveyed  them  beyond 
the  limits  of  the  town,  leaving  them  there  on  the  ground.  They  justi- 
fied under  an  ordinance  which  declared  that  all  intoxicating  liquors 
kept  within  the  limits  of  the  town  for  the  purpose  of  being  sold  or 
given  away  as  a  beverage,  to  be  drank  within  the  town,  woi  ^  -misances 
The  ordinances  directed  that  the  police  should  abate  such  nuisances 


i 

I' 


STATE  EX  REL.  OLSON  v.  LEINDECKER. 


13 


and  remove  the  liquor  beyond  the  limits  of  the  town.  The  Supreme 
Court  held  that  the  ordinance  was  void  and  that  the  conviction  should 
be  afllrmed. 

In  State  v.  Hunter,  106  N,  C.  796,  11  S.  E.  Rep,  366,  a  convlntlon  for 
false  imprisonment  against  a  police  ofllcer  of  the  City  of  Asheville  was 
afHrmed.  The  Court  held  that  the  ordinance  under  which  the  officer 
attempted  to  Justify  was  unconstitutional,  and  in  the  course  of  the 
opinion  said: 

"In  the  exercise  of  the  extraordinary  power  given  him  by  the  char- 
ter, it  was  the  duty  of  the  defendant,  before  he  touched  the  person  of 
the  prosecutor  and  demanded  a  surrender  of  his  liberty,  to  know  that 
the  misdemeanor  had  been  committed,  either  from  seeing  or  from  such 
information  as  made  him  willing  to  Incur  the  risk  of  Indictment,  or  of 
being  mulcted  In  damages  If  no  ordinance  had  been  violated.  The 
question  of  good  faith  on  the  part  of  the  policeman,  comes  to  his  aid 
when  he  Is  resisted  in  making  an  arrest  that  he  has  an  undoubted 
right  to  make,  if  there  be  resistance,  and  the  question  arises,  whether 
excessive  force  was  used  to  overcome  it;  but  policemen  of  Asheville 
must  determine,  at  their  peril,  preliminary  to  proceeding  without  war- 
rant, whether  a  valid  ordinance  has  been  violated  within  or  out  of  their 
view." 

In  Burke  v.  Bell,  36  Me.  317,  a  provision  of  a  town  by-law,  directing 
oflicers  to  arrest  brawlers  and  intoxicated  persons  and  commit  them 
for  "a  space  not  exceeding  forty-eight  hours,"  was  held  void;  and  no 
defense  to  a  suit  for  false  imprisonment  by  one  who  was  arrested  and 
held  for  the  space  of  two  days  without  a  trial. 

See  also:  Muscoe  v.  Com.,  8  Am.  Crim.  Rep.,  86  Va.  443. 


State  ex  kel  Olson  v.  Leindeckeb. 

91  Minn.  277—97  N.  W.  Rep.  972. 
Decided  January  8,  1904.* 

Abbest  wiTiiotTT  Warbant:  Such  arrests  are  only  allowed  when  the 
public  security  demands  immediate  action — Writ  of  commitment 
not  in  possession  of  officer  at  the  time  of  the  seizure — Habeas 
corpus, 

1.  Gen.  St.  1894,  §  7120,  which  provides  that  an  arrest  may  be  made 
by  an  officer  without  a  warrant  when  a  public  offense  has  been 
committed  or  attempted  in  his  presence,  and  also  when  a  felony 
has  been  committed,  although  not  in  his  presence,  is  an  affirma- 
tion of  the  common  law,  which  Is  that  an  arrest  without  a  war- 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 

♦The  peculiar  value  of  this  case  makes  It  an  exception  to  the  rule, 
that  the  present  volume  should  not  contain  cases  later  than  1903. 


14 


AMERICAN  CRIMINAL  REPORTS. 


rant  has  never  been  lawful  except  In  those  cases  where  the  public 
security  requires  It,  and  this  has  only  been  recognized  In  felony 
and  In  breaches  of  the  peace  committed  In  the  presence  of  the 

officer. 

2.  The  right  to  arrest  without  a  warrant  In  cases  of  misdemeanor 

such  as  the  violation  of  a  village  ordinance  Is  prescribed  by  Gen. 
St.  1894.  §  1252. 

3.  A  village  marshal  has  no  right  to  arrest  and  talve  Into  his  cublody 

a  person  who  has  been  found  guilty  of  a  violation  of  a  village 
ordinance  unless  a  writ  of  commitment  is  In  his  hands  at  the 
time  he  seeks  to  make  such  arrest.  The  fact  that  a  commitment 
has  been  issued  and  delivered  to  him,  which  he  has  surrendered 
to  the  village  attorney,  will  not  justify  taking  defendant  into  bis 
custody. 
(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Kenville  County;  Hon.  S.  R. 
Miller,  Court  Conuiiissioner. 

Petition  for  writ  of  habeas  corpus  by  the  State  on  the  rela- 
tion of  P.  W.  Olson  against  II.  W.  Leindecker;  writ  granted; 
Leindecker  appeals.    Affirmed. 

B.  II.  Bowler,  for  the  appellant. 
Daly  tC-  Barnard,  for  the  resiwndont. 

Collins,  J.  This  appeal  was  taken  under  Laws  189.5,  p. 
734,  c.  327,  from  an  order  discharging  the  relator,  Olson,  from 
the  custody  of  the  rcsj)ondcnt  L(>indccker.  It  appears  tliat  in 
August,  1903,  Olson  was  convicted  of  a  violation  of  a  certain 
ordinance  of  the  village  of  Bird  Island,  and  was  adjudged  by 
the  justice  before  whom  the  case  was  tried  to  pay  a  fine  of  $25 
and  costs,  and  in  default  of  payment  to  stand  committed  to  the 
common  jail  of  the  county  for  30  days.  Leindecker  was  tliG 
village  marshal,  and  his  attorney  in  this  proceeding  was  the 
village  attorney.  The  fine  was  not  paid,  and  the  justice  issiied 
a  writ  of  commitment  a  few  days  afterward,  and  delivered  it  to 
Leindecker,  as  the  village  marshal,  for  service.  Before  taking 
Olson  into  custody,  this  commitment  was  demanded  by  and 
delivered  to  the  village  attorney,  who  has  ever  sinc<'  held  and 
retained  it,  and,  according  to  his  own  assertion  on  this  appeal, 
"thereby  completely  canceled  said  Leindecker's  authority  in 
the  matter."  Later,  and  without  having  the  commitment  in 
possession,  Leindecker  took  Olson  into  custody,  whereupon  a 
Avrit  of  habeas  corpus  was  sued  out,  made  returnable  before  the 


STATE  EX  REL.  OLSON  v.  LEINDBCKER. 


16 


court  commissioner  for  the  county,  and  a  hearing  resulted  in 
the  discharge  of  Olson.  Thereupon  this  appeal  was  taken  in 
behalf  of  Loindecker. 

The  order  of  the  court  commissioner  must  be  affirmed.  With- 
out the  commitment  in  his  possession,  the  village  marshal  was 
without  authority  to  take  Olson  into  his  custody.  Without  it 
he  had  no  more  right  to  arrest  Olson  than  any  private  citizen 
would  have  had — none  at  all.  The  statutes  expressly  provide 
as  to  when  and  how  an  arrest  can  be  made  without  a  warrant. 
Gen.  St.  18!)4,  §§  1252,  7120.  Section  1252  prescribes  that 
no  warrant  shall  he  necessary  for  the  arrest  of  a  person  while 
he  is  in  the  act  of  violating  any  law  of  the  State  of  Minnesota, 
or  in  the  act  of  violating  a  village  ordinance.  Under  such 
circumstances  the  officer  may  arrest  without  a  warrant.  Section 
7120  provides  that  the  arrest  may  be  made  by  an  officer  with- 
out a  warrant  when  a  public  offense  has  been  attempted  or 
committed  in  his  presence,  and  also  when  a  felony  has  been 
committed,  although  not  in  his  presence.  This  section  is  prac- 
tically an  affirmation  of  the  common-law  rule,  which  is  that  an 
arrest  ^Vlthout  a  warrant  has  never  been  lawful  except  in  those 
cases  where  the  public  security  requires  it;  and  this  has  only 
been  recognized  in  felony  and  in  breaches  of  the  peace  com- 
mitted in  the  presence  of  the  officer.  2  Am.  &  Eng.  Enc.  (2d 
Ed.)  8G9,  and  notes.  As  to  the  power  to  arrest  when  there  has 
been  a  violation  of  a  city  ordinance,  see  same  volume,  p.  873, 
etc.,  and  notes;  also  Wahl  v.  Walton,  30  Minn.  50G,  16  N.  W. 
397. 

It  is  hardly  necessary  to  say  that  Olson  was  not  taken  into 
custody  under  the  provisions  of  either  of  these  sections,  and 
that,  as  an  arrest  without  a  warrant  cannot  be  made  except  as 
therein  provided,  his  arrest  and  detention  by  the  marshal,  with- 
out having  the  writ  of  commitment  in  his  hands,  was  wholly 
unjustifiable.  In  view  of  these  facts  and  the  condition  of  the 
record,  we  decline  to  discuss  the  other  questions  raised  by 
counsel  for  appellant. 

Order  affirmed,  and  the  relator,  Olson,  discharged. 

Notes  on  the  Law  regabding  Arrests  (by  J.  F.  G.). — The  law  on 
this  subject,  as  it  applies  to  criminal  cases,  has  received  so  much  at- 
tention in  several  of  the  cases  reported  in  the  present  volume,  that 
but  a  few  fragmentary  suggestions  will  be  made  here. 


16 


AMERICAN  CRIMINAL  REPORTS. 


AlthouKh  our  attention  now  Is  dlrcfted  to  arrents  upon  orlminnl 
charges  reference  should  be  also  had  to  authorities  upon  arrests  In  civil 
cases  for  In  Bcncral,  the  underlylnK  doctrine  Is  the  same.  It  must  be 
rememliered,  however,  that  arrests  wlthcnit  warrants  Is  condned  to 
criminal  practice.  Upon  all  the  phases  of  this  subject,  applyln.;  to  both 
civil  and  erlnilnal  cases,  see: 

4  Century  DlKcst.  as  to  arrests  In  civil  cases,  columns  595-754,  and  as 
to  criminal  cases  7ril  7'JO. 

3  Cyc,  arrests  In  criminal  cases  8C7-898;  In  civil  cases  898-980. 

1  Am.  &  Eng.  Encyc.  of  Law,  Ist  Ed.,  as  to  civil  cases  719-730,  as  to 
criminal  cases  730-758. 

2  Am.  &  Eng.  ^ncyc.  of  Law,  2nd  Ed.,  both  subjects  treated  together, 

832-914. 

Index  to  10  American  Criminal  Reports. 

Table  of  Topics  In  the  present  volume. 

The  law  regarding  arrests  according  to  Sir  Edward  Coke:  As  Sir 
Edward  Coke  wrote  his  Institutes  about  the  period  from  which  severa 
of  o\ir  American  States  took  their  common  law  (12  Am.  Crim.  Rep. 
1)40),  his  views  of  the  law  of  arrests  Is  of  special  value.  In  speaking 
of  the  office  oil  Justice  of  the  Peace  on  pages  176-178  of  Volume  4  of 
his  IntitUutes,  Sir  Edward  Coke  says: 

"One  or  more  Justice  or  Justices  of  peace  cannot  make  a  warrant 
upon  a  bare  surmise  to  break  any  man's  house  to  search  for  a  felon, 
or  for  stolen  goods,  for  they  being  created  by  act  of  parliament  have 
no  such  authority  granted  unto  them  by  act  of  any  parliament:  and  it 
should  be  full  of  inconvenience,  that  It  should  be  in  the  power  of  any 
Justice  of  peace  being  a  Judge  of  record  upon  a  bare  suggestion  to  break 
the  house  of  any  person  of  what  state,  quality,  or  degree  soever,  and 
at  what  time  soever,  either  in  the  day  or  night  upon  such  surmises. 
But  if  the  party  suspected  be  indicted,  then  the  sheriff  by  force  of  the 
king's  writ  may  demand  the  party  indicted  to  be  delivered;  and  that 
not  done,  he  may  break  open  the  house,  &c.,  and  apprehend  the  felon, 
for  that  the  king's  writ  is  a  Nan  omittas  proper  aliquam  liberatem: 
but  If  the  king's  processe  be  in  debt,  trespasse,  &c.,  at  the  suit  of  a 
party,  there  the  sherif  by  force  of  the  king's  writ  cannot  break  open 
the  house  of  the  subject.  And  so  is  the  book  in  13  E.  4  so.  9,  which 
salth:  It  was  holden,  that  for  felony  or  suspltion  of  felony  a  man  may 
break  the  house  to  take  the  felon,  and  two  reasons  are  yeelded  In  the 
book.  1.  Because  it  is  for  the  common  weale  to  ta^ke  them.  2.  Be- 
cause the  king  '  alh  an  interest  in  the  felony,  and  in  such  case  the 
writ  is  a  A'o»  omittas  proper  aliquam  liberatem:  but  otherwise  It  is 
for  debt,  or  trespasse,  the  sherif  or  any  other  cannot  break  the  house 
to  take  them.  And  yet  it  is  to  be- understood,  that  If  one  be  indicted 
of  felony,  the  sherif  may  by  processe  thereupon  after  denyall  made,  &c., 
break  the  house  for  his  apprehension,  or  upon  hue  and  cry  of  one  that 
is  slain  or  wounded,  so  as  he  is  in  danger  of  death,  or  robbed,  the 
king's  officer  that  pursueth  may  (if  denyall  be  made)  break  a  housa 
to  apprehend  the  delinquent:  but  for  justices  of  peace  to  make  war- 
rants upon  surn..  ^es,  for  breaking  the  bouses  of  any  subjects  to  search 


STATE  EX  REL.  OLSON  V.  LEINDECKER. 


17 


for  felons,  or  stoln  goods,  is  against  Magna  Carta,  Nee  super  eum 
ihimua  nee  super  eum  miltemus,  ntsi  per  legale  Judicum  parium  sit- 
unim,  vcl  per  leycm  tcrrae:  and  aRalnst  the  statute  of  42  E.  3  cap.  il, 
&c.    And  \Vf  hold  the  risolutlcn  of  the  court,  viz.  of  Brudnell,  Pollard, 
Uioke,  and  FUvszherbert  in  14  H.  8,  to  be  law,  that  a  justice  of  pearo 
could  not  make  a  warrant  to  take  a  man  for  felony,  unlesse  ho  be  In- 
dicted thereof,  and  that  must  be  done  in  open  sessions  of  the  peace. 
For  the  justice  himself  cannot  arrest  one  for  felony,  uulesae  he  himself 
suspect  him  (as  any  other  may),  and  by  the  same  reason  he  cannot 
make  a  warrant  to  another.    And  all  this  appeareth  in  that  book,  and  Is 
agreeable  with  our  former  books,  in  42  Ass.  p.  5  &  12  &  24  E.  3  tit. 
Com.  Br.  15,  and  with  reason,  for  this  warrant  to  take  a  folon  should 
be  in  nature  of  a  capias  for  felony,  which  cannot  be  gm  ited  before 
indictment,  nor  after  indictment,  but  in  open  court.     And  this  is  the 
reason  whorel'ore  justices  of  peace  before  Indictment  could  not  have  let 
any  charged  with  felony  or  sus:)itlon  to  bail,  or  mainprise,  because 
justices  of  peace  are  Judges  of  record,  and  ought  to  proceed  upon  rec- 
ord, and  not  upon  surmises.     Sed  distingucnda  sunt  tempora,  et  eon- 
cordabis  leges ;  for  since  the  statutes  of  1  &  2  Ph.  &  Mar.  cap.  13  and 
2  &  3  Ph.  &  Mar,  cap.  10  (the  words  whereof  be.  That  the  said  Justices, 
or  one  of  them  being  of  the  quorum,  when  any  such  prisoner  Is  brought 
before  them  for  any  manslaughter,  or  felony,  shall  take  examination, 
&c.),  if  any  person  be  charged  with  any  manner  of  felony,  and  infor- 
mation bo  given  to  a  justice  of  peace  of  the  felony  or  suspltlon  of 
felony,  and  feareth  that  the  kings  peace  may  be  broken  In  apprehend- 
ing of  him,  the  said  justice  may  make  a  warrant  to  the  constable  of 
the  town  to  see  the  kings  peace  kept  in  the  apprehending  and  bring- 
ing of  the  party  charged  with  or  suspected  of  the  felony  before  him, 
and  the  party  that  giveth  the  information  of  his  knowledge  or  sus- 
pltlon to  be  present  and  arrest  the  delinquent;  and  in  this  manner 
it  is  implied  and  Intended  by  the  said  statutes  for  the  prisoner  to  be 
brought  before  them;  and  this  (as  we  take  it)  agreeth  with  the  com- 
mon u.'^e  and  observance  ever  since  those  statutes.    And  this  agreeth 
also  with  the  said  book  in  14  H.  8  that  a  justice  cf  peace  may  make 
his  warrant  for  the  salvation  of  the  peace,  meaning  to  assist  the  party 
that  knoweth  or  hath  suspltlon  of  the  felony.    But  in  this  case  neither 
the  constable,  nor  any  other  can  break  open  any  house  for  the  appre- 
hension of  the  party  suspected  or  charged  with  the  felony,  for  it  is  in 
law  the  arrest  of  the  party  that  hath  the  knowledge  or  suspition,  who 
cannot  break  open  any  house:  but  If  the  door  of  the  house  be  open, 
he  may  enter  into  the  same,  and  arrest  the  party.    Thus  much  upon 
reading  of  some  that  have  written  of  the  office  of  justice  of  peace,  we 
have  thought  good  to  adde.     For  though  commonly  the  houses  or  cot- 
tages of  poore  and  base  people  be  by  such  warrants  searched,  Ac,  yet 
if  it  be  lawfull,  the  houses  of  any  subject,  be  he  never  so  great,  may 
be  searched,  &c.,  by  such  warrants  upon  bare  surmise." 

Arrest  without  ivarrant  for  felony — Sir  Matthew  Hale's  vietos  of  this 
subject— Sir  Matthew  Hale  in  volume  2  of  his  Fleas  of  the  Crown,  de- 
Vol.   XIII— 2 


:Wi 


5!i 


;    } 


18 


AMERICAN  CRIMINAL  REPORTS. 


votes  many  pages  (72-120)  to  the  subject  of  arrests,  and  explains  why 
such  arrests  are  permissible.  At  page  91,  in  speaking  of  the  powe.s 
of  constables  who  make  such  arrests,  be  says: 

"I  come  to  the  second,  namely  what  if  there  be  a  felony  done  (sup- 
pose a  robbery  upon  A.),  and  A.  suspects  B.  upon  probable  grounds 
to  be  the  felon,  and  acquaints  the  constable  with  it,  and  desires  his  aid 
to  apprehend  him;  in  this  case  I  say,  ^ 

"1.  That  the  constable  may  apprehend  B.  upon  this  account,  tho  the 
suspicion  arise  in  A.  at  first;  and  with  this  agree  the  statutes  of  3  £?.  1 
cap.  9  and  5  E.  3  cap.  14,  and  the  books  of  2  E.  4,  9,  a.  5  Co.  Rep.  91  b. 
Semain's  case,  Dalt.  cap.  109,  p.  292,  13  E.  4,  9,  a  accords  2  //,  7,  15, 
ft.,  tho  Brian  be  to  the  contrary;  but  there  are  to  be  these  circumstances 
to  accompany  it,  1.  A.,  the  person  suspecting,  ought  to  be  present, 
for  the  justification  is,  that  he  did  aid  A.  in  taking  the  party  suspected, 
2  H.  7,  15,  b.  He  ought  to  inquire  and  examine  the  circumstances  and 
causes  of  the  suspicion  of  A.  which  tho  he  cannot  do  it  upon  oath,  yet 
such  an  information  may  carry  over  the  suspicion  even  to  the  con- 
stable, whereby  it  may  become  his  suspicion  as  well  as  the  suspicion  of 
A.  And  if  the  constable  should  not  be  allowed  this  latitude  in  cases 
of  this  nature,  many  felons  would  escape,  and  the  party  arrested  hath 
no  prejudice  thereby,  for  the  justice  of  the  peace,  to  whom  in  such 
cases  he  is  properly  to  be  brought,  may  consider  the  circumstances, 
and  possibly  in  some  cases  discharge  or  bail  him,  and  upon  his  trial, 
if  innocent,  he  will  be  discharged." 

Sir  Matthew  Hale — Chronological  Biography — American  Common 
Law. — Having  in  this,  and  in  prior  volumes,  quoted  from  Hale's  Pleas 
of  the  Crown,  we  consider  it  in  place  to  give  a  short  sketch  of  that 
noted  Jurist;  not  only  as  a  tribute  to  his  memory,  but  to  shed  light 
upon  his  writings.  His  Pleas  of  the  Crown,  were  written  near  the 
period  when  the  early  colonists  brought  with  them  English  customs, 
statutes  and  common  law,  which  have  assisted  so  largely  in  developing 
the  American  Common  Law. 

The  life  of  Sir  Matthew  Hale  may  be  briefly  summarized  as  follows: 
Born  November  1,  1C09.  At  age  of  sixteen  entered  Magdalera  Hall  of 
Oxford.  Became  a  member  of  the  Honorable  Society  of  Lincoln's  Inn 
November  S,  1C29.  Called  to  the  Bar  in  1637.  Subsequently  made 
sargcant;  and  in  1653  Judge  of  the  Court  of  Common  Plea^.  After- 
wards served  in  Cromwell's  Parliament.  After  Cromwell's  death,  he 
declined  to  act  as  a  Judge  under  Richard  Cromwell;  but  represented 
Oxford  in  Parliament.  At  the  Restoration  in  1660,  was  appointed  Chief 
Baron  of  the  Exchequer  holding  that  position  for  eleven  years.  In 
1671  he  was  promoted  to  be  Lord  Chief  Justice,  but  on  account  of  de- 
clining health  resigned  in  February,  1676.    Died  Dec.  25,  1676. 

Sir  Matthew  Hale— His  rules  for  judicial  guidance.— While  speaking 
of  this  great  Jurist,  we  deem  It  no  trespass  upon  the  patience  of  our 
readers,  to  here  copy  a  note,  attached  to  "Mr.  Emlyn's  Preface"  to 
Hale's  Pleas  of  the  Crown  (1  Hale's  P.  C.  VII).    It  Is  as  follows: 

Lord  Hale  wrote  the  following  rules  for  his  judicial  guidance: 


STATE  EX  REL.  OLSON  v.  LEINDECKER, 


19 


Things  necessary  to  he  continually  had  in  rememl}rance. 

I.  That  in  the  administration  of  justice  I  am  entrusted  for  God, 
the  king  and  country;  and  therefore, 

II.  That  it  be  done,  Ist,  uprightly;  2d,  deliberately;  3d,  resolutely. 

III.  That  I  rest  not  upon  my  own  understanding  or  strength,  but 
implore  and  rest  upon  the  direction  and  strength  of  God. 

IV.  That  in  the  execution  of  justice  I  carefully  lay  aside  my  own 
])a3s-ions,  and  do  not  give  way  to  them,  however  provoked. 

V.  That  I  be  wholly  intent  upon  the  business  I  am  about,  remitting 
all  ether  cares  and  thoughts  as  unseasonable,  and  interruptions. 

Vi.  That  I  suffer  not  myself  to  be  prepossessed  with  any  judgment, 
at  all,  till  the  whole  business,  and  both  parties  be  heard. 

VII.  That  I  never  engage  myself  in  the  beginning  of  a  cause,  but 
reserve  myself  unprejudiced  till  the  whole  be  heard. 

VI II.  That  In  business  capital,  though  my  nature  prompt  me  to  pity, 
yet  to  consider  that  there  is  also  a  pity  due  to  the  country. 

IX.  That  I  be  not  too  rigid  in  matters  purely  conscientious,  where 
all  the  harm  is  diversity  of  judgment. 

X.  That  I  be  not  biassed  with  compassion  to  the  poor  or  favor  to  the 
rich,  in  point  of  justice. 

XI.  That  popular  or  court  applause,  or  distaste,  have  no  influence 
uiicn  anything  I  do  in  point  of  distribution  of  justice. 

XII.  Not  to  be  solicitous  what  men  will  say  or  think,  so  long  as  I 
keep  myself  exactly  according  to  the  rules  of  lurcice. 

XIII.  If  in  criminals  it  be  a  measuring  cast,  o  incline  to  mercy  and 
acquiital. 

XIV.  In  criminals  that  consist  merely  in  words  when  no  more  harm 
ensuos,  moderation  is  no  justice. 

XV.  In  criminals  of  blood,  if  the  fact  be  evident,  severity  is  justice. 

XVI.  To  abhor  all  private  solicitations,  of  what  kind  soever,  and  by 
whom.scever,  in  matters  dcjjending. 

XVII.  To  charge  my  servants;  1st,  not  to  interpose  in  any  business 
whatsoever;  2d,  not  to  take  more  than  their  known  fees;  3d,  not  to 
give  any  undue  precedence  to  causes;  4th,  not  to  recommend  counsel. 

XVIII.  To  be  short  and  sparing  at  meals,  that  I  may  be  fitter  for 
business. 

Arrest  without  toarrOnts,  by  ofTicer. — In  speaking  upon  this  subject 
Mr.  Blackstone  says: 

"Arrests  by  officers,  without  warrant,  may  be  executed,  1.  By  a  jus- 
tice of  the  peace,  who  may  himself  apprehend  or  cause  t''  ^e  appre- 
hended, by  word  only,  any  person  committing  a  felony  or  breach  of  the 
peace  in  his  presence.  2.  The  sheriff,  and,  3.  The  coroner, 
may  apprehend  any  felon  within  the  county  without  warrant. 
4.  The  constable,  of  whose  office  we  formerly  spoke,  hath 
great  original  and  inherent  authority  with  regard  to  arrests. 
He  may,  without  warrant,  arrest  any  one  for  a  breach  of  the 
lKa.'CQ.  committed  in  his  view,  and  carry  him  before  a  justice  of  the 
peace.  And,  in  case  of  felony  actually  committed,  or  a  dangerous 
wounding,  whereby  felony  is  lilie  to  ensue,  he  may,  upon  probable 


20 


AMERICAN  CRIMINAL  REPORTS, 


U.m 


suspicion,  arrest  the  felon;  and  for  that  purpose  Is  authorized  (as  upon 
a  justice's  warrant)  to  break  open  doors,  and  even  to  kill  the  felon 
if  he  cannot  otherwise  be  taken;  and,  if  he  or  his  assistants  be  killed 
in  attempting  such  arrest,  it  is  murder  in  all  concerned.  5.  Watch- 
men, either  those  appointed  by  the  statute  of  Winchester,  15  Edward 
I.,  c.  4,  to  keep  watch  and  ward  in  all  towns  from  sunsettlngtosunrls- 
ing,  or  such  as  are  mere  assistants  to  the  constable,  may,  virtute 
officii,  arrest  all  offenders,  and  particularly  night-walkers,  and  commit 
them  to  custody  till  the  morning."    (4  Blackstone's  Commentaries  292.) 

The  doctrine  in  the  above  quotation  from  Blackstone's  Commentaries, 
should  be  accepted  with  some  degree   of  qualification. — Interference 
with  personal  freedom,  by  the  arbitrary  act  of  either  an  officer  or  a 
private  citizen,  is  repugnant  to  the  principles  of  free  government;  and 
should  only  be  countenanced  when  public  safety  requires  It.    The  com- 
mon law  doctrine  regarding  the  arrest  of  felons  was  adapted  to  the 
conditions  then  existing;  and  to  a  limited  schedule  of  crimes.    Accord- 
ing to  the  same  authority  (4  Blackstone's  Commentaries  94),  the  term 
"felony,"  at  common  law,  meant  a  crime  which  occasioned  "the  for- 
feiture of  lands  and  goods,"  and  most  frequently  such  as  was  liable  to 
be  punished  by  death.    The  class  of  persons  termed  felons,  at  and  be- 
fore the  date  from  which  we  take  our  common  law,  wero  generally  such 
as  required  Immediate  action.    The  felon  at  common  laic,  was  generally 
one  who  had  committed  murder,  robbery,  burglary,  arson,  larceny,  or 
other  Infamous  crime;  and  being  one  bent  on  committing  crime  was 
equally  alert  to  evade  justice.    To  require  a  warrant  for  the  arrest  of 
o  felon  of  that  period,  would  have  acknowledged  the  impotency  of  the 
machinery  of  the  law,  and  would   have  been   a  disre'gard  of  public 
safety.     At  the  present  time,  but  few  of  the  felonies  are  punishable 
by  death,  while  the  list  of  crimes  known  as  statutory  felonies  have 
Increased  with  marked  rapidity.     In  this  country,  as  a  general  rule, 
any  crime  punishable  by  imprisonment  in  the  penitentiary  is  a  felony. 
Many  of  these  felonies  arise  out  of  official  and  commercial  matters, 
in  which  the  alleged  offenders  have  no  desire  to  escape;  but  generally 
either  quietly  await  arrest  or  voluntarily  api)ear  in  court  and  offer  ball. 
As  the  common  law  was  the  result  of  conditions   then   existing,  it 
should  be  either  relaxed  or  expanded  according  to  the  changes  of  con- 
ditions.   It  would  be  unreasonable  to  permit  an  officer,  in  every  instance 
of  a  statutory  felony,  to  make  an  arrest  without  a  warrant. 

For  such  offenses  as  murder,  robbery,  burglary,  arson,  or  other  like 
felonies,  the  right  of  an  officer  to  arrest  without  a  warrant  is  un- 
doubted; as  to  some  of  the  other  felonies  created  by  statute,  the  doc- 
trines of  common  sense  should  apply  and  govern,  according  to  the 
exigencies  of  each  case. 

The  right  of  watchmen  to  arrest  night-walkers  and  others,  under 
the  statute  of  13  Edward  I,  "and  commit  them  till  morning,"  even 
though  such  rule  would  otherwise  descend  to  us  as  part  of  the  common 
law,  it  certainly  is  not  in  harmony  with  our  free  institutions.  The 
right  to  commit  for  a  definite  period,  is  a  judicial  function,  and  can- 
not be  exercised  by  ministerial  officer.     (Burke  v.  Bell,  36  Me.  317.) 


STATE  EX  REL.  OLSON  V.  LBINDECKER. 


21 


Arrest  without  warrants,  for  misdemeanors  committed  in  the  pres- 
ence of  an  officer . — The  right  to  arrest  for  a  misdemeanor,  without  a 
warrant,  seems  to  have  been  largely  confined  to  breaches  of  the  peace 
in  the  presence  of  an  officer,  and  in  such  cases  where  the  public  Inter- 
est requires  immediate  action.  A  noted  case  upon  this  phase  of  the 
subject  is  Sarah  Way's  Case,  41  Mich.  299  (reported  as  In  re  May,  1 
N.  W.  Rep.  1021  J.  Sarah  Way  had  been  arrested  without  a  warrant, 
after  which  a  defective  complaint  for  vagrancy  was  filed  against  her 
upon  which  she  was  committed  to  the  House  of  Correction.  A  peti- 
tion for  writ  of  habeas  corpus  was  presented  to  the  Supreme  Court 
of  Michigan  and  upon  a  hearing  she  was  discharged  from  custody. 
This  was  at  the  period  when  the  Supreme  Court  of  Michigan  was 
noted  for  its  able  justices  and  sound  opinions,  the  presiding  justices 
being  Campbell,  Marston,  Graves,  and  Cooley.  The  opinion  by  Camp- 
bell, C.  J.  was  in  part  as  follows: 

"It  must  not  be  forgotten  that  there  can  be  no  arrest  without  due 
process  of  law.  An  arrest  without  warrant  has  never  been  lawful  ex- 
cept in  those  cases  where  the  public  security  requires  it;  and  this  has 
only  been  recognized  in  felony,  and  in  breaches  of  the  peace  committed 
in  presence  of  the  officer.  Quinn  v.  Hcisel,  40  Mich.  576;  Drennan  V. 
Pcuple,  10  Mich.  1G9.  It  could  not  have  been  contemplated — inasmuch 
as  we  are  bound  to  suppose  the  Legislature  intended  to  respect  con- 
stitutional safeguards, — that  the  station-house  sessions  would  have 
occasion  to  deal  with  many  cases  of  misdemeanors,  nor  with  any  when 
an  arrest  could  be  safely  postponed.  The  occasions  which  would  jus- 
tify arrest  without  process  must  be  very  rare  indeed  in  cases  of  va- 
grancy; and  in  a  city  no  larger  than  Detroit,  persons  charged  with 
disorderly  conduct  can  very  generally  be  dealt  with  more  legally  and 
justly  in  the  regular  way,  inasmuch  as  very  much  of  it  involves  no  im- 
mediate danger  to  public  or  private  security. 

"Making,  as  we  are  disposed  to  make,  all  proper  allowances  for  zeal 
of  ijolice  officers  in  dealing  with  persons  who  are  supposed  to  be  bad 
members  of  society,  it  is  the  duty  of  all  courts  to  prevent  good  or  bad 
citizens  from  being  unlawfully  molested.  Official  illegality  is  quite 
as  reprehensible  as  private  violations  of  law.  The  law  of  the  land 
must  be  accepted  by  every  one  as  the  only  rule  which  can  be  allowed 
to  govern  the  liberties  of  citizens,  whatever  may  be  their  ill  desert. 

"We  think  the  proceedings  in  the  case  before  us  do  not  justify  tho 
detention  of  the  prisoner,  who  is  accordingly  discharged." 

(An  excerpt  from  the  same  opinion,  bearing  upon  the  law  of  crim- 
inal complaints,  appears  in  a  previous  volume  of  these  Reports — 11  Am. 
Crini.  Rep.  377.) 

Arrests  without  warrants — Illinois  decisions  prior  and  subsequent 
to  the  Revised  Statutes  of  I81.'i. 

In  Shanley  v.  Wells,  71  111.  78,  decided  at  the  September  Term,  1873, 
after  quoting  from  4  Blackstone's  Commentaries  292,  supra,  the  Court 
said : 

"In  Main  v.  McCarty,  15  111.  441,  it  was  held  that  the  power  to  arrest, 
without  warrant,  for  breaches  of  the  peace  or  threats  to  break  it,  ex- 


Sn'.'l 


ii^ 


^  :  if  # 


22 


AMERICAN  CRIMINAL  REPORTS. 


It 


!!) 


Ists  in  cases  where  the  act  was  not  done  or  threat  uttered  in  the  pres- 
ence of  the  officer,  when  the  charge  is  freshly  made,  and  the  officer 
was  required  to  make  the  arrest. 

"In  all  other  cases,  however,  the  authorities  are  uniform,  a  constablo- 
or  nollceman  has  no  authority  to  make  an  arrest  without  a  warrant.. 
1  Russell  on  Crimes.  COO;  2  Hawkins'  Pleas  of  the  Crown,  81;  Com.  v. 
Carey  12  Cushlng,  246;  same  v.  McLaughlin,  id.  615;  Pow  v.  Beckner 
et  al'i  Ind.  475;  Cook  v.  Nethercote,  6  Carr.  and  Payne,  741;  Coupey 
V  Henley,  2  Esp.  540;  Fox  v.  Oaunt,  3  B.  and  A.  798." 

"  Subsequent  to  this  decision,  Section  2,  Division  6  of  the  Criminal 
Code  of  the  Revised  Statutes  of  1874  was  enacted,  which  reads  as  fol- 

"An  arrest  may  be  made  by  an  officer  or  a  private  person  without  a 
■warrant,  for  a  criminal  offense  committed  or  attempted  in  his  pres- 
ence, or  by  an  officer,  when  a  criminal  offense  has  in  fact  been  com- 
mitted, and  he  has  reasonable  grounds  for  believing  that  the  person 
to  be  arrested  has  committed  it." 

From  the  use  of  the  words  "a  criminal  offense"  it  would  appear  at 
first  sight  that  the  Legislature  intended  to  make  a  radical  change  in 
the  law  and  extend  the  powers  of  arrest  beyond  those  acknowledged 
by  common  law;  but  the  Supreme  Court  of  Illinois  in  the  case  cf 
North  V.  People,  139  111.  81,  28  N.  E.  Rep.  9GC,  has  strongly  intimated 
that  the  common  law  rules  are  kept  in  force  by  the  Constitution  of 
the  State.  In  that  case  after  quoting  the  above  section  of  the  criminal 
code  the  Court  said: 

"Question  is  made  whether  so  much  of  section  4.  supra,  as  authorlzr>, 
an  arrest  without  a  warrant  is  in  violation  of  section  G  of  article  2  of 
ibe  Constitution,  which  provides  that  'no  warrant  shall  issue  without 
probable  cause,  supported  by  affidavit,  particularly  describing  the  j)l:ue 
to  be  searched  and  the  person  or  thing  to  be  seized.'  But  this  has  ai)- 
plication  only  to  warrants.  It  does  not  abridge  the  right  to  arnst 
without  warrant,  in  cases  where  such  arrest  could  be  lawfully  made 
at  common  law  before  the  adoption  of  the  present  Constitution. 

"Section  2  of  the  same  article  of  the  Constitution  prcvldcs,  'no  per- 
son shall  be  deprived  of  life,  liberty  or  property  without  due  process 
of  law,'  and,  under  like  restrictions  in  the  Constitution,  It  has  been 
held  in  some  States  that  arrests  shall  not  be  made  without  a  warrant 
except  for  felonies,  and  for  breaches  of  the  peace  committed  in  th ' 
presence  of  the  officer  arresting.  (Pinkcrton  v.  Verherg,  78  Mich.  57;!, 
In  re  May,  41  id.  299,  Slate  v.  Hunter.  106  N.  C.  79G),  while  in  othrr 
States  it  seems  to  have  been  held,  under  the  same  constitutional  re- 
strictions, that  arrests  may  be  made  for  misdemeanors,  generally,  com- 
mitted in  the  presence  of  the  officer  making  the  arrest.  White  v.  Kent. 
11  Ohio  St.  550;  Thompson  v.  State,  30  Ga.  430.  See,  also,  1  Am.  and 
Eng.  Ency.  of  Law,  and  cases  cited  In  note  1,  on  page  734. 

"Without  deeming  It  necessary  to  Indicate  what  we  would  hoM  in 
regard  to  the  constitutionality  of  an  act  authorizing  an  arrest  for  u 
misdemeanor  committed  In  the  presence  of  an  officer,  where  there 
would  be  no  danger  of  the  escape  of  the  offender  or  the  continuance  of 


STATE  EX  REL.  OLSON  v.  LEINDECKER. 


23 


the  offense  If  an  arrest  were  not  presently  made,  we  have  no  hesita- 
tion In  saying  that  It  Is  within  the  principles  of  the  common  law  In 
force  In  this  State  at  and  hefore  the  adoption  of  this  provision  of  the 
Constitution,  to  allow  arrests  to  be  made  by  sheriffs,  constables  and 
other  like  officers,  for  such  misdemeanors  committed  in  their  presence 
as  can  not  be  stopped  or  redressed  except  by  immediate*  arrest.  2 
Hawkins'  P.  C.  chap.  13,  sec.  28;  3  Wharton  on  Grim,  Law  (7th  ed.), 
sec.  2927." 

Where  a  breach  in  the  peace,  committed  in  the  presence  of  an  officer, 
aiUhorises  an  arrest  without  a  warrant,  the  arrest  should  immediately 
follow  the  offence,  or  he  the  result  of  continuous  pursuit.  The  right 
to  arrest  in  such  cases  being  based  upon  the  necessity  of  immediate 
action,  such  right  is  lost  by  unreasonable  delay. 

Considerable  attention  is  given  to  this  subject,  and  cases  reviewed,  in 
State  V.  Lewis,  50  Ohio  St.  179,  N.  E.  Rep.  This  case  is  also  reported 
In  9  American  Criminal  Reports  49. 

In  Wahl  V.  Walton,  30  Minn.  50G,  a  judgment  for  damages  against 
one  who  made  an  arrest  was  affirmed.  The  arrest  was  by  an  offlcar 
and  was  made  about  6  P.  M.,  for  disorderly  conduct  In  his  preseuca 
about  noon  of  the  same  day.  In  the  course  of  the  opinion  the  Court 
said: 

"At  the  common  law,  a  constable  might,  without  warrant,  arrest  for 
a  breach  of  the  peace  committed  in  his  view.  4  Bl.  Com.  292.  But  it 
was  well  settled  that  in  case  of  an  offence  not  a  felony,  the  arrest  must 
have  been  made  at  the  time  of,  or  within  a  reasonable  time  after,  Its 
commission.  Regina  v.  Walker,  25  Eng.  Law  &  Eq.  589;  Cook  v.  Ncth- 
ercote.  G  C.  &  P.  741;  Clifford  v.  Brandon,  2  Camp.  358;  Derecourt  v. 
Corbishley,  5  El.  &  Bl.  ISS;  Phillips  v.  Trull,  11  John.  486;  Taylor  v. 
Strong,  3  Wend.  384;  Meyer  v.  Clark,  41  N,  Y.  Sup.  Ct.  107,  In  case 
of  felony  actually  committed,  although  not  In  his  presence,  he  might, 
upon  probable  suspicion,  arrest  without  a  warrant.  The  reason  for  the 
distinction  lay  In  the  greater  gravity  of  the  latter  class  of  offences,  and 
the  greater  Importance  to  the  public  of  bringing  the  offenders  to  pun- 
ishment. 

"The  statute  seems  to  be  a  re-enactment  of  the  common-law  rule, 
with  this  change:  that  the  first  subdivision  enlarges  the  class  of  cases 
in  which  a  peace  officer  may  arrest  where  the  offence  Is  committed  In 
his  presence,  so  that  such  arrest  may  be  made  for  any  public  offence, 
—felony  or  misdemeanor, — though  not  amounting  to  a  breach  of  the 
peace.  But  there  Is  no  reason  to  suppose  that  It  was  Intended  to 
change  In  any  other  respect  the  conditions  on  which  the  arrest  may  be 
made.  The  power  to  arrest  without  warrant,  while  it  may  In  some 
cases  be  useful  to  the  public.  Is  dangerous  to  the  citizen,  for  It  may  be 
perverted  to  purposes  of  private  malice  or  revenge,  and  It  ought  not, 
therefore,  to  be  enlarged. 

"When  It  Is  said  that  the  arrest  must  be  made  at  the  time  of  or  Im- 
mediately after  the  offence,  reference  Is  had,  not  merely  to  time,  but 
rather  to  sequence  of  events.  The  officer  may  not  be  able,  at  the  exact 
time,  to  make  the  arrest;  he  may  be  opposed  by  friends  of  the  offender; 


isma 


?? 


K, 


i 


24 


AMERICAN  CRIMINAL  REPORTS. 


may  find  It  necessary  to  procure  assistance;  considerable  time  may  l-e 
employed  in  tlie  pursuit.  The  officer  must  at  once  set  about  the  arrest, 
and  follow  up  the  effort  until  the  arrest  is  effected." 

Regina  v.  Walker,  cited  in  Wahl  v.  Walton,  was  a  Crown  Case  Re- 
served, decided  in  1854;   and  is  also  reported  in  1  Dearsley  Crow.i 
Cases,  pages  358-360,  where  it  is  reported  as  follows: 
REGINA  V.  WILLIAM  WALKER. 
The  following  case  was  stated  by  Mr.  Justice  Cresswell. 
Indictment  for  cutting  and  wounding  Thomas  Clarkson,  with  intent 
to  disable.    2d,  with  intent  to  do  some  grievous  bodily  harm.    3d,  with 
intent  to  prevent  the  lawful  apprehension  of  the  prisoner. 

Thomas  Clarkson  was  a  Serjeant  in  the  Lancashire  constabulary 
force,  and  the  prisoner  a  police  constable  under  him.  In  the  evenin;j; 
cf  the  3d  of  January  Clarkson  went,  as  was  his  duty,  to  the  house  of 
the  prisoner  to  see  that  he  was  correct  in  the  discharge  of  his  duty. 
The  prisoner  had  some  altercation  with  him,  and  Clarkson  left  the 
house,  the  prisoner  followed  and  struck  him,  and  fell  when  attempting 
to  strike  a  second  time.  Clarkson  then  went  away  for  assistance- 
returned  to  the  prisoner's  house  with  two  police  constables.  The  pris- 
oner was  not  then  at  home:  they  returned  again  in  two  hours,  and 
then  saw  him,  and  Clarkson  told  him  that  he  must  go  with  him  to  the 
Neioton  station.  The  prisoner  said  he  would  not  stir  an  inch  that 
night.  Clarkson  attempted  to  take  hold  of  him,  whereupon  the  pris- 
oner struck  him  on  the  head  with  a  clock  weight  and  inflicted  a  severe 
wound.  The  jury  found  him  guilty  of  wounding  to  prevent  his  lawful 
apprehension,  and  negatives  the  other  intents  charged.  Having  some 
doubt  whether  the  apprehension  was  lawful  I  did  not  pass  sentence, 
and  have  to  request  the  opinion  of  this  Court  as  to  the  projjriety  of 
the  conviction.  The  prisoner  could  not  find  bail  and  remained  in  cus- 
tody. C.  Crksswell. 

On  the  29th  of  April,  1854,  this  case  was  considered  by  Pollock,  C. 
B.,  Parke  B.,  Cresswell  J.,  Erie  J.,  and  Crompton,  J,  No  Counsel  ap- 
peared either  for  the  Crown  or  for  the  prisoner. 

PoLr.ocK,  C.  B.— We  are  all  of  opinion  that  this  conviction  cannot  be 
sustained.  The  jury  have  found  the  prisoner  guilty  upon  the  third 
count  of  the  indictment  which  charges  that  the  prisoner  committed  the 
assault  with  intent  to  prevent  his  lawful  apprehension.  We  are  of 
opinion  that  the  apprehension  was  not  lawful.  The  assault  for  which 
the  prisoner  might  have  been  apprehended  was  committed  at  another 
time  and  at  another  place;  there  was  no  continued  pursuit  of  the  pris- 
oner, and  the  interference  of  the  prosecutor  was  not  for  the  purpose  of 
preventing  an  affray,  nor  of  arresting  a  person  whom  he  had  seen  com- 
mitting an  assault.  The  apprehension,  therefore,  not  being  lawfuf  it 
follows  that  the  prisoner  could  not  be  convicted  of  an  assault  with 
Intent  to  resist  his  lawful  apprehensiow 

Pakke,  B.— On  the  authority  of  Ttmoth;f  v.  Simpson,  reported  in  C. 
M.  &  R.  757,  the  officer  might  arrest  if  there  was  danger  of  an  affray 
being  renewed,  but  that  cannot  be  said  to  have  been  so  in  the  nresenf 
case. 


STATE  EX  REL.  OLSON  v.  LEINDECKER. 


23 


Cbessweix,  J.,  Erle,  J.,  and  Cbompton,  J,,  concurred. 

Conviction  quashed. 

In  Newton  v.  Locklin,  77  111,  103,  it  was  held,  one  who  during  the 
morning,  or  middle  of  the  day,  was  drunk  and  noisy,  but  had  gone 
home  and  slept  off  the  effects  of  the  liquor,  was  not  liable  to  arrest 
without  a  warrant,  for  the  past  offense,  wlien  he  appeared  on  the 
streets  in  the  evening  cf  the  same  day. 

The  Hue  and  Cry:— On  pages  116-118  of  Volume  3  of  his  Institutes 
Sir  Edward  Coke,  under  the  title  of 

De  Hutesio  et  Clamore. 

of  HUE  and  CRY. 

says : 

"The  one  being  an  expression  of  the  other.  Four  huer  in  French 
(ande  hutesiuvi)  is  to  hoot  or  shcute;  in  English  to  crie.  There  be 
two  kindes  of  hues  and  cries,  the  one  by  the  common  law,  and  the 
other  by  statute.  Thereupon  there  are  two  pursuits,  the  one  for  the 
king,  the  other  for  the  party  by  private  suit. 

"Hue  and  cry  by  the  common  law,  or  for  the  king,  is,  when  any 
felony  is  committed,  or  any  person  grievously  and  dangerously 
wounded,  or  any  person  assaulted  and  offered  to  be  robbed  either  in 
the  day  or  night;  the  party  grieved,  or  any  other  may  resort  to  the 
constable  of  the  town,  and  acquaint  him  with  the  causes,  describing 
the  party,  and  telling  which  way  the  offender  is  gone,  and  require  him 
to  raise  hue  and  cry.  And  the  duty  of  the  constable  Is,  to  raise  the 
powor  of  the  towne,  as  well  in  the  night  as  in  the  day,  for  the  prosecu- 
tion of  the  offender,  and  if  he  be  not  found  there,  to  give  the  next  con- 
stable warning,  and  he  the  next,  untill  the  offender  be  found,  and  this 
was  the  law  before  the  conquest.  &i  quis  latroni  obviam  cleclent  eumque 
niillu  cdilo  clamore  abire  perviiserit,  quanticunque  suerit  latronis  vita 
aest  imata  extremum  solvaf  denariolum,  aut  pleno,  perfectoque  jure- 
juraiiilo  de  facinore  se  nihil  habuisse  cognito  conftrmato.  Sm  quis  pro- 
clamantem  exaudierit,  veque  vero  fuerit  insequitus,  suae  in  regent  con- 
tumatiae  (JJt  omnem  criniinis  siispicionem  diluerit)  poenas  data. 

"In  antiquo  M,  8.  si  quis  furi  obviaverit,  et  sine  vociferatione  gratis 
eiim  dimisit,  emendet,  secundum  weram  ipsius  furis,  vel  plena  lada 
se  adlcpict,  quod  cum.  eo  falsum  nescivit:  si  quis  audito  clamore  super- 
sedit,  rcddat  oversamessa  regis  aut  plene  se  laidiet.  Bracton  who 
wrote  before  any  act  of  parliament  concerning  hue  and  cry,  saith, 
omncii  tammilites,  quar  alii  qui  sunt  15  ammorum  et  amplius,  jurare, 
debent  qnod  utlagatos,  murditores,  robbatores,  et  burglatores  non  re- 
cifitut,  i(c.  Et  si  hutesium  vel  clamorem  de  talibus  audiverint.  ftatim 
audito  clamore  sequantur  cum  familia,  tfc,  and  herewith  agreetli 
Britten. 

"TIio  statute  of  W.  I.  cap.  9,  being  in  affirmance  of  the  common  law, 
provldc'th,  Que  touts  commanement  soient  prests  a  les  somons  des  viS' 
counts,  et  ou  crie  de  pais  de  suer,  et  arrester  felons,  quant  mister  serrai 
au.rihicns  deins  franchises  come  dehors. 

"And  the  statute  of  4  E,  i.  declareth  the  law  similiter  de  omnibus 
homividiis,  burglar',  occisis,  feu,  periclitantibus  levetur  hutesium,  tCc,  et 


hit 


26 


AMERICAN  CRIMINAL  REPORTS. 


omnes  sequantur  hutesium,  et  vestigium  si  fieri  protest:  et  qui  non 
fecirit,  et  super  hoc  convictus  suerit,  attachietiir  quod  sit  coram  justi- 
ciariis  de  gaola,  dc.  And  by  that  act  it  appeareth  that  so  it  is  in  case 
of  rape,  and  therewith  agreeth,  Bracton  also. 

"The  life  of  hue  and  cry  is  fresh  suit. 

"Thamar,  the  daughter  of  King  David,  being  violently  ravished  by 
her  brother  Amncn,  the  text  saith  of  her,  quae  acpergens  cinerem  cap- 
iti  stio,  scissa  talari  tunica,  imposititisque  manibus  super  caput  suum 
ibat  ingreclicns,  et  damans. 

"They  which  levy  not  hue  and  cry,  or  pursue  not  upon  hue  and  cry, 
shall  be  punished  by  fine  and  imprisonment.  Also  if  a  man  be  present 
when  a  man  is  murdered,  or  rcbbed,  and  doth  not  endeavour  to  attach 
the  offender,  nor  levy  hue  and  cry,  he  shall  be  fined  and  imprisoned. 

"Of  hue  and  cry  by  force  of  acts  of  parliament  in  five  cases.  First, 
If  a  watchman  doth  arrest  a  night-walker,  and  he  disobey  and  fly,  the 
watchman  may  make  hue  and  cry. 

"2.  Si  qiiis  forestariu:,  parcarius,  aut  warrenarius  in  baliva  sua 
malefactores  aliquos  invenerit  vagantes  ad  damnum  ibidem  faciend,  et 
qui  se  forestariis  aut  warennariis  iUis  post  elamorem  et  hutesium 
levatum  ad  pacem  regis  ad  standum  recte  reddere  noluerint,  ivimo 
ad  maliliam  suam  exequend'  et  continuand'  et  pacem  regis  diffugicnd' 
fugam  fecerit,  et  vi  et  armis  se  defenderint,  licet  forestarii,  parcarii  ct 
warrennarii  illi,  aut  alii  quicunque  ad  pacem  domini  regis  eristentes 
in  comitativa  forestariorum,  parcariorum,  aut  icarrennariorum  iUnru^ 
venientes  ad  tales  malefactores  sic  inventos  arrestand'  seu  capicnd', 
aliquen  seu  aliquos  hujusmodi  malefactorum  interfecerint,  non  propter 
hoc  occasienentur  coram  domino  rege,  et  justiciariis  quibuscimqie  aut 
aliis  balivis  domini  regis,  aut  aliorum  quorumctinque  infra  Ubertatem 
aut  extra:  nee  propter  hoc  amittant  vitam.  aut  membrum,  aut  alium 
poenam  subeant,  immo  firmam  pacem  domini  regis  inde  habeant.  Sed 
bene  caveant  forestarii,  parcarii,  tvarrennarii,  et  alii  quicunque,  ne 
occasione  contentionis,  discordiae,  contumeliae,  aut  alicujus  malcvolcn- 
tiae,  seu  odii  praehabiV  aliquibus  per  balivas  suas  transeund'  malitiose 
imponant,  quod  occasione  malefacietidi  in  balivis  suis  intrant,  cum 
hoc  non  fecerint,  nee  ipsos  vagantes  ut  malefacientes  invenerint,  ncc 
causam  malefaciendi  quaerentes,  et  sic  eos  occidant.  Quod  si  fecerint, 
et  de  hoc  fuerint  convicti,  fiat  de  morte  sic  interfectorum,  prout  ali- 
orum ad  pacem  domini  regis  existentium,  et  prout  de  jure  et  secundum 
consuetudinem  regni  fuerit  faciend. 

"3.  Welshman  outlawed,  or  Indicted  of  treason  or  felony,  that  fiy 
into  Herefordshire,  shall  be  apprehended,  &c.,  or  else  pursued  by  hue 
and  cry,  and  a  forfeiture  upon  those  that  do  not  pursue. 

"4.  Hue  and  cry  shall  be  levied  upon  takers  of  carriage  within  the 
vlerge  of  the  staple  of  that  which  pertaineth  to  the  staple. 

"5.  Where  a  man  is  robbed:  upon  hue  and  cry,  &c.,  what  remedy 
he  shall  have  against  the  hundred,  Ac,  and  how  and  in  what  manner 
the  hue  and  cry  shall  be  made  in  that  case,  see  the  statutes,  and  lib. 
7  so.  C  &  7,  the  statutes  well  expounded.  And  this  robbery  must  bo 
done  in  the  day  time,  and  not  in  the  night,  otherwise  the  party  grieved 


STATE  EX  REL.  OLSON  v.  LEINDECKER. 


27 


ihall  not  have  his  action.  And  so  note  a  diversity  betwetu  a  hue  and 
•ry  at  the  common  law,  or  for  the  Iving,  and  a  hue  and  cry  by  statute 
where  the  party  grieved  Is  to  have  his  remedy  by  private  action.  Note 
ilso  a  diversity  In  the  prosecution  at  the  common  law,  or  for  the  king, 
and  by  the  statutes  which  give  the  party  remedy,  for  a  prosecution 
to  the  next  constable  is  good  by  the  common  law,  but  so  it  is  not  by 
the  said  statutes  which  give  the  party  grieved  his  action.  See  lib.  7 
80.  7  &  8,  22  El.  Dler,  370.  So  the  prosecution  at  the  common  law 
Is  a  good  excuse  upon  an  indictment  at  the  king's  suit,  but  note  that 
It  is  no  bar  to  the  parties  action. 

"Where  hue  and  cry  either  by  the  common  law,  or  by  force  of  any 
statute  Is  levied  upon  any  person,  the  arrest  of  such  person  Is  lawful, 
although  the  cause  of  the  hue  and  cry  be  feigned,  and  if  the  cause  be 
feigned,  he  that  levy  the  same  shall  also  be  arrested,  and  shall  be  fined 
and  imprisoned.  But  common  fame  and  voice  is  not  sufflcient  to  arrest 
a  man  in  case  of  felony,  unlesse  a  felony  he  done  in  deed. 

"In  an  article  of  the  leet,  to  enquire  of  bue>>  and  cries  levied  and 
not  pursued. 

"Mandaiiim  est  OuiUelmo  de  Ilaverhull  thesaurario,  quod  civitatem, 
London  capiat  in  manum  regis,  eo  quod  elves  ejusdem  civitatis  non 
levaverunt  hutesium  et  clamores  pro  morte  magistri  Ouidonis  de  Ar- 
retio  et  aliorum  interfectorum  secundum  legem  et  consuctudinem 
regni.   Tests  rege  apud  Wndestok  22  die  Augusii." 

Manner  of  making  an  arrest. — As  a  general  rule,  the  party  about  to 
be  arrested  should  be  informed  of  the  nature  of  the  charge;  and  in 
case  of  a  warrant,  the  warrant  should  be  shown  to  him  or  read  to  him, 
and  no  more  force  used  than  is  necessary  to  secure  and  retain  cus- 
tody; but  so  diverse  are  the  conditions  in  different  localities,  and  even 
in  the  circumstances  surrounding  arrests  in  the  same  locality  or  juris- 
diction, that  an  inflexible  rule  should  not  be  announced  to  apply  to  all 
cases.  It  would  certainly  be  absurd,  to  hold  that  an  officer  having  a 
warrant,  directing  him  to  arrest  a  well-known  and  dangerous  des- 
perado upon  a  charge  of  felony,  should  first  announce  his  Intention  to 
arrest  and  then  to  proceed  to  read  the  warrant,  before  attempting  a 
seizure.  In  such  a  case,  the  seizure  of  the  desperado  with  the  least 
possible  delay,  should  meet  with  ludicial  approval;  while  any  unrea- 
sonable degree  of  haste,  insolence  or  force  used  in  the  arrest  of  an 
orderly  citizen,  under  ordinary  circumstances,  should  meet  with  con- 
demnation, if  not  punishment. 

I^aids  of  Police  Officers. — It  is  common  practice  in  the  City  of  Chi- 
cago, and  probably  in  many  other  cities,  for  police  offlcen,  to  obtain  a 
warrant  for  the  arrest  of  one  person,  as  the  keeper  of  a  house  of  ill- 
fame,  gambling  house,  or  other  place,  where  persons  are  supposed  to 
assemble  for  illegal  purposes,  and  then  under  the  color  of  the  warrant, 
make  what  is  popularly  known  as  a  "raid"  or  "pull,"  by  arresting  all 
persons  found  at  such  places.  Scores  of  persons  are  thus  arrested,  as 
inmates,  on  the  theory  that  the  entrance  into  the  premises,  was  affected 
by  virtue  of  the  warrant,  for  the  keeper,  and  that  the  other  arrests  are 
for  offences  committed  in  the  presence  of  the'  officer. 


28 


AMERICAN  CRIMINAL  REPORTS. 


The  term,  "Inmate,"  signifies  a  continuous  condition,  and  not  an  act 
done  in  the  presence  of  the  officer,  creating  a  sudden  emergency,  that 
requires  an  immediate  arrest.  To  determine  whether  one  Is  an  inmate 
requires  evidence  as  to  a  number  of  acts,  or  continuous  conduct,  and 
is  not  a  matter  to  be  passed  upon  by  a  ministerial  officer,  at  the  moment 
of  an  emergency  arrest.  Furthermore,  an  inmate  is  one  that  is  at- 
tached to,  or  is  a  part  of  a  system,  and  not  a  casual  visitor  or  patron. 
In  these  "raids,"  all  persons  found  at  the  house,  except  it  may  be  the 
cook  or  chambermaid,  are  hastily  captured,  placed  in  patrol  wagons, 
and  conveyed  to  a  police  st.itlon,  where  they  find  professional  bonds- 
men, anxiously  waiting  and  Intensely  willing  to  sign  bonds  for  a  pe- 
cuniary consideration,  thereby  suspending  Imprisonment  until  the  next 
moinin!;,  when  fines  are  assessed  and  paid,  and  the  Incident  closed. 
The  keepers  generally  are  not  only  willing  to  pay  fines  for  themselves 
and  iumates,  but  often  for  their  visiting  patrons,  who  frequently  are 
"bookod"  under  fictitious  names,  and  by  silence  seek  to  avoid  pub- 
licity. 

Thus  from  year  to  year  the  City  derives  a  revenue  by  levying  a 
tribute  on  vice  and  misfortune;  encouraging  and  protecting  instead  cf 
suppressing  vice;  while  the  professional  bondsmen  and  police  court 
lawyers  thrive  by  this  systematic  and  ofilcial  perversion  of  law,  morals 
and  justice. 

Of  rare  occurrence  are  these  unlawful  "raids"  made  the  subject  of 
judicial  inquiry;  but  the  resistance  on  the  part  of  a  married  woma:i 
in  187S  against  a  mob  of  officials  caused  her  to  be  held  to  the  grand 
jury  on  a  charge  of  felony.  The  matter  was  then  brougnt  before  the 
Honorable  W.  K.  McAllister  as  Judge  of  the  Circuit  Court  of  Cook 
County,  whose  written  opinion  was  published  in  the  Chicago  Legal 
News  of  Dec.  7,  1878  (11  Chi.  L.  N.  95). 

Judge  McAllister  presided  for  several  years  as  Judge  of  the  Record- 
er's Court  of  Chicago,  now  the  Criminal  Court  of  Cook  County,  and 
was  then  promoted  to  a  seat  on  the  Supreme  Bench  of  Illinois,  from 
which  he  resigned  to  accept  the  office  of  judge  of  the  Circuit  Court  of 
Cook  County.  He  ranked  as  one  of  the  foremost  judges  of  his  time, 
and  was  noted  for  his  learning,  sound  judgment,  integrity  and  human- 
ity. In  this  Instance  his  opinion  is  too  valuable  to  be  left  buried 
among  the  leafs  of  a  periodical.  We  here  give  it  in  full,  as  follows: 
THE  PEOPLE  ex  rel  McDONALD  v.  MILLER. 

McAllister,  J. — The  prisoner  having  been  bound  to  the  Criminal 
Court  on  the  charge  of  assault  with  intent  to  kill,  sued  out  the  writ  of 
Habeas  Corpus  for  the  purpose  of  a  full  investigation  of  the  charge 
and  circumstances  attending  the  shooting,  which  is  admitted. 

It  appears  that  she  is  the  wife  of  Michael  C.  McDonald;  has  two 
children,  with  whom  at  the  time  in  question,  she  was  living,  upon  the 
third  floor  of  the  building.  No.  17C  Clark  Street,  Chicago,  and  had  been 
since  March  last,  carrying  a  boarding  and  lodging  house,  using  a  por- 
tion of  the  third  floor  for  family  apartments,  and  the  residue  of  that 
floor,  with  all  of  the  fourth,  for  her  business.  At  about  half  past  nine 
o'clock  of  the  evening  of  Nov.  23d,  this  house  was  forcibly  entered 


'i    i 


STATE  EX  REL.  OLSON  v.  LBINDECKER. 


29 


by  from  ten  to  twelve  policemen,  all  armed  with  pistol  or  club,  and 
two  or  three  of  them  having  "jimmies,"  such  as  burglars  use  to  forco 
open  doors,  etc.  They  came  in  a  noisy  and  tumultuous  manner  upon 
the  floor  where  the  prisoner  resided,  she  being  at  the  time  in  feeble 
health.  She  demanded  of  them  their  authority,  upon  which  two  of 
them,  at  least,  flourished  a  paper  calling  it  a  warrant,  but  which  wns 
not  in  fact  shown  or  read  to  her;  some  of  them  making  an  attempt  to 
force  their  way  Into  certain  of  her  rooms.  She  forbade  the  act,  an;l 
offered  to  go  with  any  gentleman  from  among  them,  if  any  there  was, 
and  with  her  pass  key,  take  such  person  through  all  her  rooms.  This 
was  not  acceded  to;  violent  and  insulting  language  was  used;  one  of 
them  put  his  hands  upon  her,  as  if  to  arrest  her;  several  were  huddled 
about  her,  armed  as  stated  before.  She  bade  them  leave  her  house;  and 
having  taken  a  revolver  from  under  her  pillow,  threatened  to  shoot 
if  they  persisted  in  breaking  into  her  rooms.  They  did  not  depart, 
but  persisted  in  demonstrations  of  violence  toward  her,  and  in  at- 
tempts to  force  their  way  into  her  rooms.  Under  this  state  of  thing? 
she  flred  a  shot  at  the  two  leaders  of  the  raid,  the  ball  penetrating  tho 
clothing  of  one  of  them,  but  doing  no  further  injury.  This  is  the  of- 
fense for  which  she  was  bound  over,  and  the  question  is:  was  the 
shcoting.  under  the  circumstances,  justifiable  or  not? 

It  apiiears  that  this/  raid  was  planned  and  directed  by  the  superin- 
tendent of  the  police,  and  that  the  persons  who  carried  that  plan  into 
effect  were  but  obeying  the  orders  of  their  superior  officer. 

it  also  appears  that  on  Oct.  4,  1878,  a  warrant,  on  complaint  of  a 
policeman,  was  issued  by  Suramerfleld,  against  Michael  C.  McDonald, 
for  the  alleged  offense  of  keeping  a  common  gaming  house.  Although 
this  party  was  there  every  day,  no  attempt  was  made  to  have  it  exe- 
cuted. And  on  Nov.  21st,  complaint  was  made  by  another  officer  against 
the  same  party  for  tlie  same  charge  before  Morrison,  and  another  war- 
rant was  issued  by  him.  They  were  neither  of  them  search  warrants; 
but  ordinary  State  warrants  for  an  alleged  past  offense.  Michael  Mc- 
Donald was,  on  the  very  evening  in  question,  in  view  of  the  officers 
having  these  warrants,  before  the  invasion  of  the  prisoner's  apartments; 
but  no  attempt  was  made  to  arrest  him,  and  the  leader  of  the  raid  tes- 
tified that  they  did  not  intend  to  arrest  him  on  either  warrant  unless 
they  found  others  gambling  in  the  house;  in  that  case  they  were  in- 
structed to  arrest  all  under  these  warrants.  It  is,  therefore,  clear  that 
these  warrants  were  not  obtained  or  held  for  the  bona  fide  purpose  of 
arresting  M.  C.  McDonald  for  the  alleged  past  offense  charged.  In  all 
the  disturbance  these  officers  made  no  inquiry  or  search  for  that  party. 
The  warrants  were  a  mere  pretext,  or  subterfuge,  for  breaking  into  the 
house.  It  was  a  plain  abuse  of  the  process  of  the  law,  which  rendered 
every  person  participating  and  cognizant  of  the  purpose  a  trespasser 
from  the  beginning.  (Slomer  v.  The  People,  25  111.  70.)  Consequently, 
the  warrants  have  no  further  effect  in  this  case  than  that  of  aggravat- 
ing the  trespass,  and  showing,  with  the  other  circumstances,  the  rea- 
sonableness of  the  prisoner's  apprehensions  of  violence  from  those  en- 
gaged in  this  high  banded  business. 


.    % 


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t 

30 


AMERICAN  CRIMINAL  REPORTS. 


After  a  searching  examination,  the  evidence  failed  to  show  that  any 
gambling  was  being  done  on  the  premises  at  the  time  In  question.  Was 
this  place  the  r-'isoner's  house — her  habitation?  She  dwelt  there  with 
her  children,  and  had  no  other.  It  Is  an  audent  maxim  of  the  com- 
mon law,  that,  "every  man's  house  is  his  castle."  A  castle  Is  a  house 
fortified  for  defense  against  an  enemy;  a  fortress— a  striking  figure, 
expressive  of  one  of  the  sturdiest  principles  of  Anglo-Saxou  civil  lib- 
erty, it  matters  not  what  the  form  or  physical  structure;  whether  It 
Le  In  a  garret— whether  It  be  cottage  or  hut;  so  long  as  sentient 
human  beings  dwell  In  It  as  a  home.  In  contemplation  of  law.  It  Is  a 
fortress  for  the  security  of  private  life  against  all  unlawful  Invasion. 
ICeither  the  chief  magistrate  of  State  or  nation — neither  chief  of  police 
or  sheriff,  unarmed  with  proper  legal  process  can  cross  unbidden,  the 
humble  threshold.  Mark  the  eloquent  words  of  the  once  great  com- 
moner of  England:  "The  poorest  man  may,  in  his  cottage  bid  defiance 
to  all  the  forces  of  the  crown.  It  may  be  frail,  Its  roof  may  shake,  the 
wind  may  blow  through  it,  the  storm  may  enter,  the  rain  may  enter, 
but  the  king  of  England  may  not  enter-— all  his  forces  dare  not  cross 
the  threshold  of  the  ruined  tenement." 

Conforming  to  that  great  fundamental  principle  of  civil  liberty,  is 
the  following  In  our  bill  of  rights:  "The  right  of  the  people  to  be 
secure  In  their  persons,  houses,  papers  and  effects,  ngalnst  unreason- 
able searches  and  seizures,  shall  net  be  violated;  and  no  warrant  shall 
Issue  without  probable  cause,  supported  by  affidavit,  particularly  de- 
scribing the  place  to  be  searched  and  the  persons  and  things  to  be 
seized."  It  Is  not  a  fair  interpretation  of  this  section  that  no  arrests 
can  be  made  without  warrant.  When  a  felony  has  been  committed, 
r.n  authorized  officer  may,  upon  suspicion,  supported  by  reasonable  and 
probable  grounds,  arrest  the  party  suspected  without  warrant.  But  in 
such  case  it  would  be  unlawful  to  enter  a  dwelling  house  by  force,  or 
without  permission  of  the  occupant.  In  case  of  misdemeanors  no  ar- 
rest without  warrant  can  be  justified,  except  when  the  party  i-  ♦'"  ■  " 
in  the  act  of  committing  misdemeanors. 

This  section,  however,  forbids  the  forcible  entrance  of  ai.  icer 
into  a  dwelling  for  the  purpose  of  searches  or  seizures,  without  a  .\  ar- 
rant issued  in  pursuance  of  us  provisions. 

It  is  manifest  from  the  views  expressed  that  all  the  persons  engaged 
in  the  Invasion  of  the  prisoner's  rooms  were  trespassing  because  they 
had  no  warrant  authorizing  such  entry,  or  the  search.  The  warrant  they 
had  not  being  for  the  bona  fide  arrest  of  the  party  named  but  held 
for  another  purpose,  and  an  Illegal  one,  afforded  no  justification  and 
afforded  no  authority. 

It  was  claimed  by  counsel  for  the  city,  that  because  some  of  these 
cfficers  had  uniforms  on,  it  was  the  same,  so  far  as  concerned  the  pris- 
oner, as  If  they  had  full  legal  authority.  I  am  unable  to  perceive 
why  a  uniform  should  confer  power  any  more  than  fine  raiment  should 
confer  virtue. 

Officers  m  uniforms  may  constitute  a  mob.  and  their  tumult  amount 


\    \  I 


STATE  EX  REL.  OLSON  v.  LEINDECKER. 


31 


to  a  riot  JUBt  the  same  as  an  unlawful  assemblage  of  men  in  rag3  and 
fllth. 

It  Is  declared  by  Statute  In  this  State,  "that  Justifiable  homicide  ia 
the  killing  of  a  human  being  in  the  defense  of  habitation  against  any 
l)frson  or  persons  who  manifestly  intend  and  endeavor  in  a  violent, 
riotous,  or  tumultuous  manner  to  unter  the  habitation  of  another  for 
the  purpose  of  assaulting  or  offering  personal  violence  to  any  person 
dwelling  or  being  therein." 

Here  were  ten  or  twelve  men  armed  with  pistol  and  club,  and  imple- 
ments for  breaking  open  doors,  assembled  at  the  entrance  of  the  pris- 
oner's apartments;  they  were  without  legal  authority,  and  treajjassers; 
they  were  violent  and  tumultuous;  they  assaulted  and  maltreated  her; 
they  were  in  the  act  of  breaking  into  her  apartments  by  force;  she 
bade  them  depart,  and  they  did  not,  but  persisted  in  the  unlawful 
attempt  to  enter,  when  she  fired  the  pistol  at  the  leaders.  Nobody 
was  hurt;  but  if  the  person  aimed  at  had  been  killed  it  would  have 
been  ju.stihable  homicide,  because  there  is  in  the  facts  every  element 
ii  oossary  to  bring  the  case  within  the  statute.  These  fundamental 
prlncii)les  which  underlie  the  doctrine  of  individual  rights  under  our 
government,  must  be  steadfastly  and  unflinchingly  adhered  to  and  up- 
lield.  If  they  shall  ever  become  so  obsolete  as  to  be  inoperative,  all 
that  in  most  valuable  in  our  institutions  will  be  gone;  and  it  will  be 
the  fault  principally,  of  the  courts,  that  it  is  so.  The  very  first  thing 
that  a  judge  ought  to  learn,  and  the  last  he  should  forget,  is  that,  as 
between  the  private  individual  and  governmental  powers,  upon  whorre 
probable  abuses  constitutions  were  intended  as  a  restraint,  he  should 
be  ever  watchful  and  solicitous  in  guarding  the  individual  rights  of 
the  citizen,  leaving  such  power  to  take  care  of  itself;  for  power  is 
always  gathering  to  Itself  strength,  enlarging  its  sphere  with  a  con- 
stant tendency  to  aggression.  It  can  more  *han  take  care  of  itself. 
This  is  especially  true  of  the  police  power  of  the  City  of  Chicago,  where 
the  individual  personal  rights  of  the  citizen  are  habitually  disre- 
irdcd,  to  my  certain  knowledge.  Regarding  this  as  a  clear  case  of 
Kstlfiable  self-defense,  the  prisoner  will  be  discharged. 

The  prinoiier  whether  arrested  with  or  toithout  a  warrant,  should  be 
talien  before  a  magistrate  with  the  least  practical  delay. — In  his  Pleas 
of  the  Crown,  Sir  Matthew  Hale  says:  "When  the  officer  or  minister 
has  made  hh  irrest,  he  is  forthwith  to  bring  the  parties  to  the  gaol,  or 
to  the  justice,  according  to  the  import  of  the  warrant.  But  if  the  time 
be  unseasonable,  as  in  or  near  the  night,  whereby  he  cannot  attend 
the  justiee,  or  if  there  be  danger  of  a  present  rescue,  or  M  the  party 
be  sick  and  not  able  at  present  to  be  brought,  he  may,  as  the  case  shall 
require,  se<  m  i>,  him  in  the  stocks,  or  in  case  the  quality  of  the  person 
or  the  indi  ijosition  so  require,  secure  him  in  a  house  till  the  next 
day,  or  such  time  as  it  may  be  reasonable  to  bring  him."  (2  Hale, 
Pleas  of  the  Crown,  119.) 

In  State  v.  Freeman,  86  N.  C.  683,  the  court  said:  "All  the  author- 
ities agree  that  he  should  be  carried,  as  soon  as  conveniently  may  be, 
before  some  Justice  of  the  peace.    And  if  he  is  arrested  at  a  time  and 


',    Ji^ 

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32 


AMERICAN  CRIMINAL  REPORTS. 


under  such  circumstances  that  he  cannot  be  carried  Immediately  be- 
fore a  justice,  the  officer  may  keep  him  in  custody,  commit  him  to  the 
gaol  or  the  lock-up,  or  even  tie  him,  according  to  the  nature  of  the 
ofTense  and  the  necessity  of  the  case.  Arch.  Cr.  PI.  27;  2  ch.  13,  §  T.- 
Dillon Mun.  Corp.,  271,  ^tate  v.  i>talcup,  2  Ired.,  30."  See  also  Green 
V.  Kennedy,  4C  Barbour  IG. 

This  fundamental  principle  of  law,  common  sense  and  justice,  is 
based  on  the  theory  that  the  offlcrcr  making  the  arrest  has  no  judicial 
power.  His  duty  is  simply  to  make  the  arrest,  to  prevent  the  pris- 
oner's escape,  to  protect  him  from  harm  and  to  bring  him  before  a 
judicial  officer,  who  may  then  proceed  to  hear  the  matter  immediately, 
or  for  good  cause  continue  the  case  to  a  set  time. 

Wright  v.  Court  et  al.,  6  Dowl.  &  Ry.  C23,  was  a  suit  for  false 
imprisonment  against  officers  for  imprisoning  the  plaintifC  for  three 
days  before  bringing  him  before  a  magistrate.  The  defense  claimed 
that  the  detention  was  a  reasonable  detention  for  the  purpose  of 
enabling  tlie  prosecutor  to  procure  the  necessary  evidence  and  wit- 
nesses; but  the  Court  held,  that  three  days  is  not  only  an  unreason- 
able time,  but  that  the  officers  had  no  right  to  detain  the  prisoner  for 
any  time  for  the  purpose  of  securing  evidence,  and  that  it  was  their 
duty  to  have  taken  the  prisoner  before  a  magistrate  as  soon  as  they 
could  have  reasonably  done  so.  This  case  is  reported  in  full  along 
with  other  matters  on  this  subject  in  a  previous  volume  of  these  re- 
ports—11  Am.  Crim.  Rep.  293-295. 

A  practice  has  prevailed  in  Chicago  for  years— and  probably  in 
many  other  large  cities— of  conveying  a  prisoner  when  arrested  to  a 
police  itation,  locking  him  up  in  a  cell,  entering  his  r  me  upon  a  sta- 
tion book  and  then  keeping  him  in  confinement  until  the  next  morn- 
ing, or  perhaps  for  several  days  before  he  is  brought  before  a  magis- 
trate. In  ordinary  cases  the  prisoner  is  permitted  to  get  bail  and 
see  his  counsel  or  friends;  but  it  is  often  the  case  that  the  prisoner  U 
locked  up  in  a  dingy  cell  in  the  basement  of  some  police  station,  and 
not  "booked"  or  permitted  to  see  his  friends  or  relatives,  while  the 
police  are  "working  up  the  case,"  and  it  may  be  endeavoring  to  obtain 
a  confession.  This  practice  is  certainly  in  direct  conflict  with  law. 
When  a  prisoner  is  arrested  during  the  business  hours  of  the  day  an;l 
under  ordinary  circumstances,  there  is  no  occasion  to  convey  him  to 
the  police  station  and  then  enter  his  name  as  a  prisoner  upon  the  sta- 
tion records.  He  should  be  immediately  taken  before  the  magistrate 
where  the  case  may  be  heard  or  continued  in  the  discretion  of  tlio 
magistrate;  and  if  the  case  continued,  be  admitted  to  bail.  The  city 
can  equally  well  keep  its  record  of  arrests  by  the  report  of  each  of- 
ficer after  the  prisoner  has  been  taken  to  the  magistrate,  as  it  can  by 
e'l-ring  the  name  upon  the  station  record  while  the  prisoner  is  need- 
le&oly  and  illegally  confined  in  a  cell. 

Arrest  icithout  warrant — Necessary  to  file  complaint  before  magis- 
trate.—'When  a  person  arrested  without  a  warrant  Is  brought  before  a 
magistrate,  the  emergency  through  which  the  law  permits  the  arrcbt 
without  written  process  having  ceased,  the  ordinary  rules  ol  practice 


should  cc 
take  jurii 
informed 
is  necesss 
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trate  is  n 
iitituting 
recognizer 
a  warrant 
or  afflrmai 
locality,  s 
assume  ji 
formed.  In 
cause  of  ( 
plaint  mus 
but  as  the 
be  no  neci 
custody;  I 
rant,  it  w< 
ing  a  prii 
arrest  shoi 
cate  made 
A  leadin 
the  facts  d 
Conn.,  a  1 
street  unh 
tlce  of  the 
accordance 
of  the  per 
Williams, 
Elisha   Tr 
further  in 
nlzed   witl 
refused  to 
to  jail.    B 
onment  an 
before  the 
legal,  but 
In  si)eakir 
"They  are 
a  justice; 
on  the  jus 
course,  an 
to  the  esta 
In  Bingl 
person  ma 
out  a  char 
posed  of  I 
viction  in 
Vol 


STATE  EX  REL.  OLSON  v.  LBINDECKER. 


33 


should  control  all  subsequent  proceedings.  Before  the  magistrate  can 
take  jurisdiction  over  the  person  of  the  prisoner,  he  must  be  legally 
informed  by  complaint  under  oath  of  the  cause  of  the  arrest.  This 
is  necessary  not  only  because  the  accused  is  entitled  to  see  the  accusa- 
tion against  him  and  have  a  copy  of  the  same,  but  because  the  magis- 
trate is  not  presumed,  in  his  official  capacity,  to  know  the  facts  con- 
stituting the  cause  of  arrest,  until  he  is  informed  through  an  avenue 
recognized  by  law.  As  in  the  first  Instance,  he  has  no  power  to  issue 
a  warrant  for  the  arrest  of  a  human  being  except  on  affidavit,  or  oath, 
or  affirmation,  according  to  the  constitution  or  statute  of  the  respective 
locality,  so  when  an  arrest  is  made  without  a  warrant  he  cannot 
assume  jurisdiction  over  the  person  of  the  prisoner,  until  he  Is  in- 
formed, in  his  capacity  as  a  magistrate,  of  the  facts  constituting  good 
cause  of  detention.  In  some  jurisdictions  it  is  claimed  that  a  com- 
plaint must  be  made  and  a  warrant  issued  and  served  on  the  prisoner; 
but  as  the  prisoner  is  already  In  custody  of  the  officer,  there  seems  to 
be  no  necessity  of  a  warrant  issuing  for  the  arrest  of  one  already  in 
custody;  but  as  an  officer  must  make  his  return  of  service  to  a  war- 
rant, it  would  seem  in  accordance  with  good  practice,  that  upon  bring- 
ing a  prisoner  arrested  without  a  warrant  before  a  magistrate,  the 
arrest  should  be  stated  either  in  the  complaint  filed  or  in  the  certifi- 
cate made  by  the  officer. 

A  leading  case  upon  this  subject  Is  Tracy  v.  Williams,  4  Conn.  107, 
the  facts  were  substantially  as  follows:  On  July  21,  1819,  at  Norwich, 
Conn.,  a  large  collection  of  persons  had  assembled  together  upon  a 
street  unlawfully  and  with  unlawful  intent.  Joseph  Williams,  a  jus- 
tice of  the  peace,  in  pursuance  of  law,  mado  an  oral  proclamation  in 
accordance  with  the  act  to  prevent  and  punish  riot;  after  which  eight 
of  the  persons  having  refused  to  separate,  were,  by  the  command  of 
Williams,  gently  seized  and  brought  before  him,  among  whom  were 
Elisiia  Tracy.  The  justice  having  personal  knowledge,  and  having 
further  inquired  Into  the  facts,  ordered  that  said  persons  "be  recog- 
nized with  surety"  to  appear  before  the  County  Court,  etc.  Tracy 
refused  to  enter  into  a  recognizanc  •  ?s  required  and  was  committed 
to  jail.  Because  of  this  commitment  he  brought  suit  for  false  impris- 
onment and  obtained  a  verdict  of  $1.00  damages.  The  matter  coming 
before  the  Supreme  Court  It  was  held — That  the  original  arrest  was 
legal,  but  that  beyond  that  there  was  no  validity  to  the  proceedings. 
In  speaking  of  the  power  of  the  officers  to  arrest,  the  Court  said: 
"They  are  authorized  to  arrest  the  offenders,  and  to  take  them  before 
a  justice;  and  here  terminates  the  authority  given.  It  then  devolves 
on  the  justice  to  see,  that  proceedings  according  to  law.  In  Its  usual 
course,  are  Instituted,  and  the  persons  arrested  dealt  with,  pursuant 
to  the  established  mode  of  procedure." 

In  Bingham  v.  State,  59  Miss.  529,  it  was  said:  "It  Is  true  that  a 
person  may  be  arrested  without  a  warrant,  in  certain  cases,  but  with- 
out a  charge  preferred  as  required  by  law,  there  is  no  case  to  be  dis- 
posed of  by  the  justice  of  the  peace,  and  nothing  to  sustain  a  coa* 
vlction  in  such  case." 
Vol.  XIII— 3 


Iff 


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'l! 


U 


34 


AMERICAN  CRIMINAL  REPORTS. 


W:\ 


;    I 


ilii 


See  also  Wilcox  v.  Williamson,  61  Miss.  311;  Prell  v.  McDonald,  7 
Kan.  450:  Burgis  v.  State,  4  Ind.  126;  O'Brien  v.  State,  12  Ind.  3G9; 
Drake  v.  State,  68  Ala.  512;  Clark  v.  New  Brunswick,  14  Vroom  175; 
Mayer  v.  Murphy,  11  Vroom  145;  Com.  v.  Ward,  4  Mass.  496;  Sheldon 
V.  Newton,  3  Ohio  St.  494  (499). 

It  had  for  many  years  been  the  practice  In  Chicago  police  courts  to 
hear  cases  against  people  arrested  without  warrants,  without  any 
written  complaint  being  placed  upon  file;  this,  however,  met  with  a 
sudden  check  through  an  opinion  by  the  late  Judge  Tuley,  then  pre 
siding  In  the  Criminal  Court.  Two  young  men  by  the  name  of  Mad- 
den, were  arrested  without  any  warrant  in  the  latter  part  of  January, 
1889,  and  imprisoned  In  the  Desplalnes  street  police  station  for  sev- 
eral days  without  being  taken  before  the  court.  Upon  an  applica- 
tion being  made  for  a  writ  of  habeas  corpus  they  were  hurried  to  the 
police  court  before  Justice  Woodman,  and  upon  motion  of  the  police 
ofRcer,  the  case  continued  for  several  days;  but  no  complaint  was  filed 
against  them  nor  was  any  legal  evidence  shown  why  the  case  should 
be  continued.  Upon  return  to  the  writ  of  habeas  corpus  It  was  claimed 
that  they  had  been  arrested  for  the  offense  of  larceny.  The  point  on 
behalf  of  the  prisoners  was  then  made,  that  no  accusation  under  oath 
having  been  made  before  the  Justice  of  the  peace,  the  entire  proceed- 
ings were  void,  and  that  such  fatal  defect  could  not  be  cured  by  the 
return  to  the  writ  of  habeas  corpus.  The  judge  then  continued  the 
hearing  for  two  days  that  he  might  be  informed  as  to  the  proceedings, 
prior  to  the  return  of  the  writ  of  habeas  corpus.  At  the  next  hearing 
the  justice  and  >.ne  or  more  officers  testified,  from  which  it  appeared 
that,  the  prisoners  were  arrested  and  held  for  the  period  of  two  days 
in  the  police  stat'on,  and  then  when  the  writ  of  habeas  corpus  was 
being  applied  for,  that  they  were  hurried  before  Justice  Woodman,  and 
without  a  complaint  being  filed  or  cause  shown  the  case  was  continued 
for  several  days.  The  Court  held  that  while  the  arrest  in  the  first 
Instance  may  have  been  legal,  that  it  was  the  duty  of  the  officers  to 
take  the  prlsonerc  before  a  magistrate  with  the  least  practicable  delay 
and  have  a  complaint  under  oath  made  against  them;  and  that  as  they 
were  detained  an  unreasonable  time,  and  as  the  Justice  assumed  juris- 
diction without  a  complaint  under  oath  being  filed,  and  continued  the 
case  without  good  cause  shown,  the  imprisonment  was  Illegal,  and 
that  the  prisoners  were  entitlerl  'o  their  discharge.  The  decision  com- 
ing from  a  judge  of  recognized  ability,  it  was  immediately  made  the 
rule  in  the  p  '"ro  courts  to  file  complaints  in  all  criminal  cases  where 
the  arrests  were  made  without  warrant;  but  some  doubt  existed  as 
to  the  doctrine  applying  to  city  cases.  At  the  July  term  of  the  same 
year  the  appeal  of  William  Kenney,  who  was  arrested  without  a  war- 
rant, tried  without  a  complrint  and  fined  $20.00,  came  before  Judge 
Horton  fc  hearing  in  the  Criminal  Court.  A  motion  to  dismiss  the 
case,  because  It  did  not  appear  that  any  complaint  was  filed  against 
the  defendant  was  very  extensively  argued,  a  special  date  set  for  the 
argument,  several  days  afterward  Judge  Horton  giving  a  written 
opinion  sustaining  the  motion  (21  Chi.  Legal  News  386).    The  City  of 


STATE  EX  REL,  OLSON  V.  LEINDECKER. 


35 


Chicago  appealed  to  the  Appellate  Court  and  the  Judgment  was  re- 
versed (City  of  Chicago  v.  Kenney,  35  111.  App.  57).  The  Court  held 
that  the  same  doctrine  did  not  apply  to  civil  cases  as  to  criminal 
cases,  and  that  all  defects  in  the  proceedings  were  cured  by  the  appeal. 
The  old  practice  was  again  resumed  in  city  cases;  but  as  the  opinion 
of  the  Appellate  Court  is  by  the  statute  declared  not  binding  upon  other 
courts,  and  as  it  did  not  meet  with  favor  by  all  of  the  judges  of  the 
Circuit  and  Superior  Courts  of  Cook  County,  the  city  authorities  again 
resumed  the  practice  of  filing  complaints  in  city  cases  as  well  as  in 
criminal  cases,  which  practice  continues  to  this  day. 

nights  of  jailors  in  suppressing  resistance  to  the  lawful  and  neces- 
sary exercise  of  their  authority — Criminal  responsibility  of  prisoners 
tcho  cauie  death  by  such  resistance — Willful  and  inhuman  treatment 
of  a  prisoner  by  a  jailor  resulting  in  the  prisoner's  death  may  amount 
to  murder — Sir  Michael  Foster's  views  upon  these  subjects, — On  pages 
321  and  322  of  Foster's  Crown  Law  the  learned  author  says: 

"Gaolers  and  their  officers  are  under  the  same  special  protection  that 
other  ministers  of  justice  are.  And  therefore  if,  in  the  necessary  dis- 
charge of  their  duty,  they  meet  with  resistance,  whether  from  pris- 
oners in  civil  or  criminal  suits,  or  from  others  in  behalf  of  such  pris- 
onei-s,  they  are  not  obliged  to  retreat  as  far  as  they  can  with  safety, 
but  may  freely  and  without  retreating  repel  force  by  force.  And  if 
the  party  so  resisting  happeneth  to  be  killed,  this  on  the  part  of  the 
gaoler,  or  his  officer,  or  any  person  coming  in  aid  of  him  will  be  jus- 
tifiable homicide.  On  the  other  hand,  if  the  gaoler,  or  his  officer,  or 
any  person  coming  in  aid  of  him  should  fall  in  the  conflict,  this  will 
amount  to  wilful  murder  in  all  persons  joining  in  such  resistance.  It 
is  homicide  committed  in  defiance  of  the  justice  of  the  kingdom. 

"But  in  regard  to  the  great  power  these  officers  have,  and,  while  it 
is  exercised  with  moderation,  ought  to  have  over  their  prisoners,  the 
law  watcheth  with  a  jealous  eye  over  their  conduct.  And  therefore 
if  a  prisoner  under  their  care  dieth,  whether  by  disease  or  accident,  the 
coroner  upon  notice  of  such  death,  which  notice  the  gaoler  is  obliged 
to  give  in  due  time,  ought  to  resort  to  the  gaol,  and  there  upon  view 
of  the  body  make  inquisition  Into  the  cause  of  the  death;  and  if  the 
death  was  owing  to  cruel  and  oppressive  usage  on  the  part  of  the 
gaoler  or  any  officer  of  his,  or,  to  speak  In  the  language  of  the  law, 
to  duress  of  imprisonment,  it  will  be  deemed  wilful  murder  in  the  per- 
son guilty  of  such  duress.  I  say  the  person  guilty  of  the  duress,  be- 
cause though  in  a  civil  suit  the  principal  may  in  some  cases  be  an- 
swerable in  damages  to  the  party  injured  through  the  default  of  the 
deputy  upon  the  principle  of  respondeat  superior;  yet  In  a  capital 
prosecution,  the  sole  object  of  which  is  the  punishment  of  the  delin- 
quent, each  man  must  answer  for  his  own  acts  or  defaults. 

"The  Instances  of  oppression,  which  may  fall  within  the  rule  ol' 
duress  of  imprisonment,  are  as  various  aa  a  heart  cruelly  bent  upon 
mischief  can  invent.  I  will  mention  two  which  have  lately  come  In 
judgment.  A  gaoler,  knowing  that  a  prisoner  infected  with  the  small- 
pox lodged  in  a  certain  room  in  the  prison,  confined  another  prisoner, 


,! 


I  t 


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if 
ii 

II 

i  |{ 


36 


AMERICAN  CRIMINAL  REPORTS. 


i«! 


against  Ms  will,  In  the  same  room.  The  second  prisoner,  who  had 
not  had  the  distemper,  ->/  tvhich  the  gaoler  had  notice,  caught  the  dis- 
temper, and  died  of  It.    This  was  very  rightly  holden  to  be  murder  In 

the  gaoler. 

"Another  straltly  confined  his  prisoner  in  a  low  damp  unwholesome 
room  without  allowing  him  the  common  necessaries  of  chamber-pot, 
&c.,  for  keeping  things  sweet  and  clean  about  him.  The  prisoner,  hav- 
ing been  long  confined  In  this  manner,  contracted  an  ill  habit  of  body, 
which  brought  on  distempers,  of  which  he  died.  This  likewise  was 
very  rightly  holden  to  be  murder  in  the  party  guilty  of  this  duress. 

"These  were  deliberate  acts  of  cruelty,  and  enormous  violations  of 
the  trust  the  law  reposeth  in  Its  ministers  of  justice." 


Si'RADi.EY  V.  State. 

80  Miss.  82—31  So.  Rep.  534. 

Decided  March  17,  1902, 

Arrest  witiiottt  Warrant  by  Private  Person— Indictment  for  As- 
sault WITH  Deadly  Weapon  with  Intent  to  Cojimit  Mitrdeu: 
Right  to  resist  unlawful  attempt  to  arrest — Incompetent  evidence 
admitted — Competent  evidence  rejected. 

1.  An  Indictment  charging  that  the  defendant  made  an  assault  upon 

one  Frank  Brown  "with  a  certain  deadly  weapon,  to-wit,  a  blade 
of  iron  known  and  called  a  'grass  blade,'  or  'scythe  blade,'  and 
with  said  blade  of  iron  did  then  and  there  willfully  and  feloni- 
ously strike,  cut,  and  wound  the  said  Frank  Brown,  with  the 
willful  and  felonious  intent  then  and  there  him,  the  said  Frank 
Brown,  to  willfully  and  feloniously  and  of  his  malice  aforethought 
kill  and  murder,"  etc.,  is  not  vulnerable  to  the  objection  that,  it 
does  not  charge  an  assault  made  with  a  deadly  weapon  or  other 
means  of  force  likely  to  produce  death. 

2.  By  the  statutes  of  Mississippi:   For  a  felony  actually  committed, 

a  private  person  may  arrest  any  one  he  has  reasonable  grounds  to 
suspect  and  believe  committed  it. 

3.  Three  private  persons,   Brown,   Jones,  and  Pannell,   who  had   no 

knowledge  of  any  offense  uelng  committed,  entered  the  accused's 
sleeping  apartment  at  a  hotel  about  midnight.  Brown  endeavor- 
ing to  arrest  Spradley  for  a  supposed  crime,  was  resisted;  for 
which  resistance  Spradley  was  Indicted.  There  was  no  evidence 
that  a  felony  had  been  committed  previous  to  the  attempted  ar- 
rest; —  held,  —  that  the  attempt  to  arrest  Spradley  was  illegal; 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


SPRADLEY  V.  STATE. 


37 


and  Spradley  had  a  right  to  resist;  also,  held, — that  It  was  error, 
to  Instruct  the  Jury,  that  if  Brown  had  reason  to  believe  that 
Spradley  had  committed  a  felony  he  had  a  right  to  arrest  him. 

4.  The  Court  erred  in  allowing  Brown  to  testify  that  Pannell  iden- 

tified Spradley  as  one  be  thought  had  misbehaved  and  had  cut  a 
negro  at  a  camp. 

5.  The  accused  should  have  been  permitted  to  show  the  authority 

claimed  by  Brown,  Jones,  and  Pannell,  and  the  manner  of  exer- 
cising their  assumed  authority,  as  bearing  on  the  propriety  of 
their  entering  his  room  and  attempting  to  arrest  him. 

Appeal  fvotu  the  Circuit  Court,  Chickasaw  County;  Hon. 
E.  O.  Sykes,  Judge. 

Georgo  Spradley  convicted  of  assault  with  intent,  etc.. 
appeals.     Keversed. 

The  charging  part  of  the  indictment  Avas  as  follows : 

**Geo.  Spradley,  late  of  the  district  and  county  aforesaid,  on 
the  15th  day  of  April,  1901,  with  force  and  arms,  in  the  district 
and  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 
in  and  upon  one  Frank  Bro\\Ti  did  unlawfully  and  feloniously 
make  an  assault  with  a  certain  deadly  weapon,  to-wit,  a  blade 
of  iron  known  and  called  a  'grass  blade,'  or  'scythe  blade,'  and 
with  said  blade  of  iron  did  then  and  there  willfully  and  feloni- 
ously strike,  cut,  and  wound  the  said  Frank  Brown,  with  the 
willful  and  felonious  intent  then  and  there  him,  the  said  Frank 
Brown,  to  willfully  and  feloniously  and  of  his  malice  afore- 
thought kill  and  murder ;  contrary  to  the  statutes  in  such  cases 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
State  of  Mississip])i." 

In  the  Court  below  the  defendant  demurred  to  the  indict- 
ment, claiming  that  "the  indictment  does  not  charge  that  an 
assault  was  made  with  a  deadly  weapon,  or  other  means  of 
force  likely  to  produce  death" ;  which  demurrer  was  overruled 
and  exceptions  taken.  The  defendant  was  convicted  and  sen- 
tenced to  the  penitentiary  ;   hence  this  appeal. 

T.  J.  Buchanan  and  L.  P.  Haley,  for  the  appellant. 
Monroe  McChirg,  Attorney  General,  for  the  State. 

Teuual,  J.  George  Spradley  was  indicted  in  the  Second 
Circuit  Court,  District  of  Chickasaw  County,  for  a  felonious 
assault  and  battery  upon  Frank  BroAvn.  He  objected  to  the 
indictment  as  deficient,  but  how  it  could  be  bettered  we  fail  to 


('^'{l 


>m  J 


li: 
m 


38 


AMERICAN  CRIMINAL  REPORTS. 


see.    Spradley  was  convicted,  and  sentenced  to  the  penitentiary, 
and  appeals  his  case  here. 

Upon   his   trial   ho   offered   certain   evidence,    which    was 
rejected,  and  excepted  to  certain  evidence  oiferod  against  him 
and  to  certain  instructions  given  on  the  part  of  the  prosecution. 
Frank  Brown,  Jack  Jones,  and  Mr.  Pannell,  about  the  hour 
of  midnight,  and  when  Spradley    was    asleep,    invaded    the 
privacy  of  his  room  at  the  Dahmcr  Hotel,  where  he  was  staying 
and  lodging, — opened  the  door  of  his  room, — for  the  purpose; 
of  making  his  arrest,  awakened  him  out  of  his  sleep,  and  in  his 
presence  and  heariug  consulted  together  about  his  arrest;  and 
very  soon  thereafter  an  encounter  between  Spradley  and  Brown, 
growing  out  of  such  attempted  arrest,  occurred,  which  is  the 
subject  of  this  indictment.    The  prosecution  attempted  to  base 
an  authority  in  Brown,  Jones,  and  Pannell  to  arrest  Spradley 
on  the  ground  that  he  had  cut  Van  Hobson  that  evening  at  the 
camp  house  in  Okolona,     Our  law  (Code,  §   1.375)  allows  a 
private  person  to  arrest  any  person  without  warrant  for  an 
indictable  offense  attempted  in  his  presence ;   or  when  a  felony 
has  been  committed,  though  not  in  his  presence;    or  when  a 
person  has  committed  a  felony,  and  he  has  reasonable  ground 
to  suspect  and  believe  the  person  proposed  to  be  arrested  to  have 
committed  it.    But  there  is  not  a  line  of  evidence  tending  to 
show  that  Spradley  had  committed  any  offense  upon  Hobson, 
or  upon  any  other  person.     Upon  the  contents  of  this  record 
there  is  not  a  ground  for  the  slightest  suspicion  that  Spradley 
had  committed  any  felony  or  misdemeanor  whatever.    And  yet 
the  court,  in  its  second  instruction  for  the  State,  instructed  the 
jury  that,  if  Brown  had  reason  to  believe  that  defendant  had 
committed  a  felony,  he  had  a  right  to  arrest  him,  etc.     The 
attempt  to  arrest  Spradley  by  Brown  and  others  was  unlawful, 
and  Spradley  had  the  right  to  resist  such  unlawful  effort  by 
all  reasonable  means,  and  unless,  in  so  doing,  he  exceeded  tho 
bounds  of  prevention  and  defense,  he  is  guilty  of  no  wrong. 
The  giving  of  the  second  charge  for  the  State  is  error,  as  our 
predecessors  have  uniformly  held  that  an  instruction  witliout 
evidence  to  support  it  is  hannful.    Brame  &  A.  Dig.  p.  G33, 
par.  1. 

The  court,  over  the  objection  of  appellant,  permitted  Brown 
to  testify  that  Pannell  identified   Spradley  as  the  man  he 


U,  I  ■ 


STATE  V.  STANCILL. 


39 


thought  had  misbehaved  at  the  camp  house  or  cut  a  negro  there, 
with  a  view  of  showing  grounds  for  his  arrest,  although  tlicre 
was  no  competent  evidence  whatever  of  any  misbehavior  or  cut- 
ting of  any  one  on  the  part  of  Spradley.  To  place  before  the 
jury  thoughts  or  suspicions  of  Pannell  as  to  the  commission 
of  some  crime  by  Spradley  was  erroneous.  If  Spradley  had 
been  under  indictment  for  assault  upon  Ilobson,  the  evidence 
of  such  crime,  so  far  as  it  appears  in  this  record,  is  too  slight 
to  Ix;  placed  before  the  jury  as  a  ground  for  his  conviction. 
Evidence,  direct  or  circumstantial,  of  such  character  as  leads  to 
certain  conclusions,  is  what  the  law  demands  in  all  cases,  and 
the  mere  thoughts  of  a  witness  may  in  no  case  be  admitted. 

The  defendant  endeavored  to  elicit  from  Brown,  Jones,  and 
Pannell  the  authority  claimed  by  them  for  his  attempted  iivvest, 
and  motives  moving  them  thereto,  and  the  manner  of  exercising 
their  assumed  authority,  as  bearing  upon  the  propriety  of  their 
invading  his  retirement  at  midnight,  which  was  excluded  by 
the  court.  We  think  the  defendant  below  should  hav(>  l)een 
permitted  to  show  the  motives  and  conduct  of  Brown  and  liib 
associates  in  attempting  to  make  his  arrest  as  a  criminal  as 
important  features  of  the  transaction.  If  the  action  of  the 
court  was  based  upon  the  assumption  that  the  questions  put  by 
defendant's  counsel  were  objectionable  as  being  leading,  they 
may  correct  the  error  ujion  a  new  trial.  The  complaint  of 
appellant  on  the  second  and  third  points  here  passed  upon  was 
made  in  many  phrases  of  its  insistence,  but  the  instances  here 
enumerated  Avill  serve  as  a  guide  for  all  others  of  like  sort. 

Reversed  and  remanded. 


State  v.  Stancill. 

128  N.  C.  606—38  S.  E.  Rep.  926. 
Decided  May  28,  1901. 

Arrest  wirnocT  Warrant — Homicide:    killing  of  an  escaped  convict 
in  attempt  to  capture  him — Review  of  the  law  relating  to  arrests 
by  private  persons. 
1.  One  Frank  Rossell,  In  December,  1888,  was  sentenced  to  Imprison- 
ment, etc.,  for  twelve  months,  for  stealing  a  peclt  of  growing  corn. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


i  ! 


I:l||(j:l, 


40 


AMERICAN  CRIMINAL  REPORTS. 


He  escaped  In  January,  1889.  Ten  years  after  the  escape,  the 
accused,  who  had  for  two  years  been  superintendent  of  the  con- 
vict camp,  but  was  a  stranger  to  Rossell,  attempted  to  capture 
him,  at  which  Rossell  ran;  the  accused  calling  to  him  without 
effect  to  halt,  flred  two  shots,  the  second  of  which  was  fatal. 

2.  A  superintendent  of  a  convict  camp.  Is  not  a  "sheriff,  coroner,  con- 

stable, or  officer  of  police,  or  other  peace  officer,  intrusted  with 
the  care  and  preservation  of  the  public  peace,"  etc.,  as  provided 
for  by  Section  1126  of  the  Code. 

3.  Under  the  facts:  that  the  arrest  occurred  long  prior  to  Stancill's 

term  of  office  as  superintendent,  of  the  convict  camp  and  that  he 
and  Rossell  were  strangers,  —  held,  —  that  Stanclll  had  no  more 
right  to  attempt  an  arrest  of  Rossell  than  would  a  private  person. 

4.  A  review  of  the  law  relating  to  arrests  by  private  persons. 

5.  The  defendant,  as  a  witness  in  his  own  behalf,  admitted,  that  he 

was  the  superintendent  of  the  convict  camp,  but  for  two  years; 
that  through  another  person  he  located  Rossell.  who  was  a 
stranger  to  him;  went  to  Stancill's  house  and  inquired  for  him; 
that  Rossell  then  attempted  to  run;  that  without  notifying  Ros- 
sell of  his  official  position  as  superintendent  of  the  convic  t  farm, 
he  declared  Rossell  to  be  his  prisoner  and  ran  after  him  calling 
''  on  him  to  halt  and  then  shot  him;  —  held  —  that  the  Court  did 
not  err  in  instructing  the  jury,  that,  the  defendant's  evidence,  if 
true,  showed  a  case  of  manslaughter, 

6.  Dictum — A  superintendent  of  a  convict  farm  has  a  right  without  a 

warrant  to  arrest  a  convict  escaping  from  his  custody;  and  where 
the  convict  knows  the  superintendent,  no  notice  of  such  authority 
need  precede  the  arrest. 

Appeal  from  the   Superior  Court,   Gaston   County;    lion. 
Tlinmas  J.  Shaw,  Judge. 

William   S.    Stancill,   convicted   of  manslaughter,    appeals. 

Afiirnicd. 

Clark-son  £  Dus,  Osborne,  Maxwell  tC  Kcerans,  and  BurivcU, 
Walker  tO  Cansler,  for  the  appellant. 
Robert  D.  Gilmer,  Attorney  General,  for  the  State. 

FuKciiES,  0.  J.  The  prisoner  was  indicted  for  the  murder 
of  one  Frank  Rossell,  who  had  been  convicted  of  the  larceny  of 
nn«  peck  of  corn,  growing  in  the  field,  in  the  criminal  court  of 
Mecklenburg  county,  in  Deceml)er,  1888,  and  sentenced  to  12 
months'  imprisonment  in  jail,  Avith  leave  to  the  commissioners 
to  hire  him  out;  and  under  this  sentence  he  was  placed  on  th( 
chain  gang  for  that  county,  and  on  the  14th  of  January,  1880, 
he  escaped.  F.  W.  Sossaman  was  the  superintendent  at  that 
time.     The  prisoner  had  been  superintendent  of  the  camp  for 


STATE  V.  STANCILL. 


41 


two  years  or  more  boforo  he  killed  Rossell.  The  homicide 
occurred  in  Gaston  county,  and  it  was  in  evidence  that  the 
(l(c( ased  had  been  living-  in  that  county  for  nine  or  ten  years. 

Tliere  were  several  witnesses  introduced  for  the  Slate;  among 
tliciu  William  Black,  whose  character  was  jiroved  to  ho  good; 
ami,  among  other  things,  he  testified:  "I  asked  Stancill  if  ho 
cauiiht  his  man,  and  he  said  the  first  time  he  shot  lie  did  not 
glidot  to  hit  him;  but  the  second  time,  if  he  missed  him,  it 
was  not  his  fault,  for  he  aimed  right  at  his  back.  Jle  said  he 
ciiidil  have  caught  the  durucd  rascal,  but  he  did  not  want  to." 
Ihit,  as  the  court  put  its  charge  on  the  prisoner's  evidence,  wo 
•live  that  in  full: 

Win.  S.  Stancill,  the  prisoner:  "I  Avas  suj)erintendent  of 
convict  camp  for  ^feckleidmrg  county  for  two  years  or  more 
pvi(ir  to  the  shooting.  It  is  the  duty  of  the  superintendent  to 
cai)tnre  escaped  convicts.  I  hi  ard  of  Frank  Kossell  being  in 
(lastou  county.  Griflin  spotted  escapes.  Tie  located  and 
reported,  and  I  went  to  capture  him.  I  had  nci  warrant  or 
dtlicr  proof  for  Rossell  wdien  I  shot  him.  I  met  his  wife  at  the 
door,  and  she  said  her  husband  had  gone  (fV.  I  saw  him 
standing  at  the  window.  I  went  to  the  window.  lie  had 
ste]t])ed  about  down  inside  of  the  house,  and  I  said:  'Hold  up, 
you  are  my  prisoner.'  lie  did  not  give  me  time  to  tell  him 
who  I  was.  Scott  was  coming  around  to  meet  me,  and  deceased 
made  for  the  door.  He  got  out  and  ran,  and  I  after  him.  lie 
fell  first,  and  I  got  close  to  him,  and  I  fcdl,  and  he  gained 
distance  on  me.  I  was  hallooing  Mlalt!'  every  jnmji.  I  had 
my  ])isi(d  in  my  hand.  I  ran  him  a  piece  of  the  way.  I  got 
up,  and  shot,  and  had  no  intention  to  hit  him  the  first  time, 
nor  the  secoiul  time.  I  ran  him  until  I  gave  out  at  branch,  and 
he  got  out  of  sight.  I  did  not  know  he  was  hit  till  Saturday 
night  afterwards,  and  this  was  on  Wednesday  morning.  I 
turned  back,  and  met  Mr.  Black,  and  he  asked  me  if  I  was 
after  him  for  that  old  grudge,  and  I  told  him  I  w\as;  and  he 
said  they  were  getting  a  petition  to  have  him  pardoned ;  and  I 
tolil  liim  if  I  had  known  that  I  would  not  have  bothered  him. 
I  think  I  told  Mr.  Black  if  I  did  not  catch  him  it  was  not  my 
fault.  I  did  not  tell  him  I  did  not  try  to  catch  him.  I  made 
hwth  shots  in  the  cotton  patch,  and  he  jumped  the  fence  after 
he  was  shot.    I  told  Sheriff  Love  and  chief  of  police  of  (^har- 


I  . 


r       I 


iM 


42 


AMERICAN  CRIMINAL  REPORTS. 


lotto  that  I  shot  to  frighten  him,  and  did  not  intend  to  hit  him, 
pnd  did  not  know  until  they  arrested  me  that  I  had  hit  liini. 
1  had  no  badge  of  office  on." 

Cross-examined :  "I  won't  swear  that  I  did  not  state  to  Mr. 
Black  that  I  aimed  to  hit.  Don't  rememl)er  having  told  Rufus 
Johnston  that  I  shot  to  kill  him.  I  did  not  notify  the  deceased 
that  I  was  an  officer,  or  that  I  was  connected  with  the  convict 
camp  in  .Mecklenburg  county." 

The  court  charged  the  jury  that,  if  they  believed  the  evidence 
of  the  prisoner,  he  was  guilty  of  manslaiighter,  upon  his  own 
evidence.  Prisoner  exec])te(l,  and,  upon  judgment  being  i)r()- 
nounced,  ajipt  aled  to  this  court. 

The  prisoner  puts  his  defense  upon  the  ground  that  he  had 
the  right  to  arrest  Kossell,  under  section  1126  of  the  Code; 
and,  if  this  is  so,  he  had  the  right  to  arrest  Rossell,  who  was 
an  escaped  convict,  as  the  superintendent  of  the  convict  camp. 
And,  finally,  that,  Rflssell  being  an  escaped  felon,  he  had  the 
right,  as  a  private  citizen,  to  arrest  him ;  and,  having  this  right, 
he  had  the  right  to  shoot  and  kill  him,  if  necessary. 

We  do  not  think  the  prisoner  had  the  right  to  arrest,  under 
section  1126  of  the  Code.  He  was  not  a  "sheriff,  con)ner, 
constable,  or  officer  of  police,  or  other  peace  officer,  intrusted 
with  the  care  and  preservation  of  the  public  peace,"  within 
the  meaning  of  that  statute.  Nor  do  we  think  the  fact  that  the 
jjrisoner  was  the  superintendent  of  the  convict  camp  in  ^leck- 
lenburg  county  gave  him  any  authority  to  make  the  arrest,  under 
the  facts  in  this  case.  And  in  saying  this  we  will  not  be  under- 
stood to  say  that  we  do  not  think  the  superintendent  of  a  con- 
vict camp  would  not,  ordinarily,  have  the  right  to  arrest  an 
escaped  convict.  This,  we  think,  he  would  have,  where  the 
convict  knew  that  he  was  such  superintendent.  And  he  would 
have  this  right  in  such  case  without  making  known  the  fact 
that  he  was  such  superintendent,  as  this  would  be  useless  if  the 
escaped  prisoner  knew  the  fact.  Nor  do  we  think  that  in  such 
a  case  it  would  be  necessary  for  such  superintendent  to  procure 
any  other  authority  to  do  so.  In  fact,  we  know  of .  no  one 
who  would  be  authorized  to  give  him  any  other  authority. 

But  in  this  case  it  had  been  10  years  since  Rossell  escaped, 
and  when  he  did  so  one  Sossaman  was  the  superintendent.  The 
prisoner  did  not  know  Rossell,  and  had  him  pointed  out ;  and 


STATE  V.  STANCILL. 


43 


Ihcrc  is  not  the  slightest  evidence  that  Rossell  knew  him,  or 
knew  that  ho  was  superintendent  of  convicts  in  Mecklenburg 
county.  This  being  so,  we  are  of  the  opinion  that  the  prisoner 
had  no  more  right  to  make  the  arrest  than  any  private  citizen 
would  have  had. 

The  case  then  comes  down  to  bo  discussed  upon  the  right  a 
private  citizen  would  have  had  to  ninko  the  arrest,  and  the 
duties  devolving  upon  him,  and  rights  and  liabilities  in  making 
such  arrest. 

A  private  citizen  has  the  right  to  arrest  a  felon,  whether  ho 
is  present  when  the  felony  is  committed  or  not.  When  he  is 
not  present,  it  devolves  on  him  to  show  that  the  felony,  for 
which  he  arrested,  had  been  committed.  Nenl  v.  Joiiner,  89 
X.  (\  2S9.  He  has  the  same  right  in  cases  of  an  escaped  felon. 
2  Am.  &  Eng.  Enc.  Law,  887,  and  note  1. 

Where  a  known  officer  is  attempting  to  make  an  arrest  for 
an  assault  and  battery,  and  the  defendant  knows  what  he  is 
wanted  for,  the  officer  need  not  show  his  warrant.  But  it  is 
otherwise  if  tlie  officer  is  not  known  to  the  defendant,  and  in 
fueh  case  he  Avould  have  to  show  the  warrant.  State  v.  Garrett, 
GO  X.  C.  144,  84  Am.  Dec.  359. 

A  private  citizen,  attempting  to  arrest  a  felon  without  war- 
rant, must  make  his  purpose  known,  and  for  what  oifense; 
and,  unless  he  does  so,  the  party  attempted  to  be  arrcstod  has 
the  right  to  resist  the  arrest.  Neal  v.  Joyncr,  and  State  v.  Gar- 
rctf,  supra;  State  v.  Beth,  76  N.  C.  10;  State  v.  McNinch, 
90  X.  C.  695. 

Where  a  private  person  imdertakes  to  arrest  a  felon  or  an 
escaped  felon,  and  has  made  his  purpose  and  reason  for  the 
arrest  known,  he  must  then  proceed  in  a  peaceable  manner  to 
make  the  arrest ;  and,  if  he  is  resisted,  he  may  use  such  force 
as  is  necessary  to  overcome  the  resistance,  if  used  for  that  pur- 
pose alone.  2  Am.  &  Eng.  Enc.  Law,  906  .note  2.  But  this  is 
put  upon  the  ground  that  the  party  attempting  to  make  the 
arrest  becomes  personally  involved,  and  he  has  the  right  to 
defend  himself.  State  v.  Bryant,  65  X.  C  327.  But,  where 
the  attempted  arrest  is  for  a  petty  larceny,  as  in  this  ease,  and 
the  party  runs  off,  the  party  attempting  the  arrest  has  no  right 
to  shoot  and  kill  him.     State  v.  Bryant,  siipra. 

In  this  case  the  prisoner  did  not  make  himself  known  to  the 


!> 


:s 


44 


AMERICAN  CRIMINAL  REPORTS. 


doconsoJ,  nor  the  reason  for  the  nrrest,  Xor  did  the  deceased 
resist  the  arrest,  hut  ran  as  for  his  life,  and  the  prisoner  ran 
after  him,  and  shot  and  killed  him.    This  he  had  no  right  to  do. 

In  the  case  of  Slate  v.  Roane,  13  X.  C.  58,— a  case  in  somo 
respects  similar  to  this, — Judge  Henderson  commenced  his 
opinion  hy  saying,  "If  the  facts  stated  are  true,  the  defendant 
has  no  cause  to  complain  of  the  verdict."  And  it  seems  to  us 
that,  if  the  evidence  in  this  case  is  true,  the  prisoner  has  no 
cause  to  complain  of  the  charge  of  the  judge,  the  verdict  ol' 
the  jury,  or  the  sentence  of  the  court.  Xo  error  appearing  to 
us,  the  judgment  is  affirmed. 

Cook,  J.  (dissenting).  It  is  with  hesitancy  that  I  dissent 
from  the  decision  of  tlie  court,  hut  my  views  differ  so  widely 
that  I  feel  it  my  duty  to  do  so.  Had  deceased  heen  an  avcnscl^ 
person,  the  reasoning  expressed  hy  the  chief  justice  would  he 
applicahle  and  forceful.  Every  person  is  presumed  to  be  inno- 
cent of  crime  until  h'gally  tried  and  convicted.  Therefore  the 
law  protects  its  citizens  in  the  enjoyment  of  liberty,  and  \m'- 
scribes  the  mode  and  manner  by  which  they  may  bo  arr(!sk;l 
and  brought  to  trial,  intrusting  the  execution  of  the  same  t(» 
its  officers,  who  are  required  to  take  a  solemn  oath  in  the  per- 
fornuuice  of  tlieir  duties. 

Arrests  can  be  made  by  no  one  for  alleged  offenses  unless 
upon  a  warrant  based  upon  an  afHdavit  issued  by  a  judicial 
officer,  except  those  enumerated  in  sections  1124,  1125,  112<!, 
and  1121)  of  the  Code,  in  which  cases  the  alleged  offenders  must 
be  taken  immediately  before  such  magistrate,  who,  on  proper 
proof,  shall  issue  a  warrant,  and  tlioreon  ])roceed  to  act  as  pre- 
scribed by  law.  In  authorizing  the  arrest  of  one  who  is  in  thi; 
legal  enjoyment  of  his  liberty,  the  law,  presuming  his  inno- 
cence, protects  him  from  imposition  of  those  not  knov;n  to  be 
officers  by  requiring  such  to  make  known  their  legal  authority 
before  lie  is  obliged  to  surrender. 

In  State  v.  Garrett,  GO  X.  C.  144,  at  page  l.'iO,  84  Am.  Deo. 
359,  it  is  held:  "One  Avho  is  not  a  known  officer  ought  to  show 
liis  warrant,  and  read  it  if  required ;  but  it  would  seem  that 
this  duty  is  not  so  imperative  as  that  a  neglect  of  it  will  nuiko 
him  a  trespasser  ah  initio,  where  there  is  proof  that  the  partv 
subject  to  be  arrested  had  notice  of  the  warrant,  and  was  fully 
aware  of  its  contents/'  etc. 


STATE  V.  STANCILL. 


45 


So  careful  la  the  law  to  protect  those  who  have  not  boon  tried 
and  convicted  that  the  "outhiwrt"  arc  entitled  to  be  "called  upon 
and  warned  to  surrender"  before  they  arc  allowed  to  Im;  slain. 
CimIc,  J?  1 IJU.  ]Jut  they  Ixdonfj;  to  the  same  class — "accused" — 
willi  those  to  whom  the  authorities  cited  in  the  opinion  of  the 
court  refer,  and  ndate  to  tho  conduct  and  power  of  officers  in 
niakin<>'  the  arrest  in  limine.  After  an  arrest  has  been  made,  it 
is  the  duty  of  tho  officer  to  hold  him,  even  if  it  become  neces- 
sary to  take  his  life  in  doinf?  so.  In  (S7a/c  v.  Sigmnn,  100  N. 
C.  7o-^  11  S.  E.  520,  it  is  h(dd  that:  "After  an  accused  person 
has  been  arrested,  an  officer  is  justified  in  using  tho  amount  of 
force  necessary  to  detain  him  in  custody,  aiul  he  may  kill  his 
I'risdncr  to  prevent  his  escape,  provided  it  becomes  necessary, 
wlu'tlier  he  he  charged  with  a  felony  or  misdemeanor."  I 
IJisli.  Cr.  Proc.  ^5  01^.  Why  should  the  escaped  convict  bo 
entitled  to  any  more  protection  than  while  escaping?  IIo 
cannot  fall  within  the  protection  of  those  sections  of  the  Code 
which  are  made  for  tho  benefit  of  those  having  a  legal  right  to 
control  their  time  and  conduct  before  a  conviction.  No  ma- 
chinery of  tho  law  is  provided  for  the  cajiture  of  an  escaped 
felon  under  sentence.  Warrants  are  provided  for  the  arrest  of 
the  accused  to  the  end  that  the  truth  may  be  inquired  into ; 
not  for  the  convicted.  After  conviction  and  sentence,  the  felon 
has  no  liberty.  By  his  own  willful  conduct  he  lias  forfeited  it, 
and  it  has  been  so  adjudged.  Having  escaped  the  prison  to 
which  he  was  consigned,  tho  law  owes  him  no  protection.  None 
owe  liini  succor  or  comfort.  He  is  the  prisoner  of  the  State, 
and  should  bo  captured  wherever  and  by  whomsoever  found. 
While  the  law  imposes  no  obligation  upon  citizens  generally 
to  capture  him,  yet  they  arc  forbidden  to  receive,  re^.ieve,  com- 
fort, or  assist  him.  Yet  it  is  the  legal  duty  of  those  officers 
who  were  encharged  with  the  custody  of  such  convict  to  go 
and  take  him  wherever  ho  is  known  to  be,  for  his  personal 
liberty  is  not  within  the  pale  of  any  jurisdiction.  Pie  has  no 
right  to  question  tho  authority  of  his  captor,  or  to  require  the 
reading  of  a  warrant  or  capias,  for  the  law  has  made  no  such 
provision  in  his  behalf. 

When  the  deceased  imdertook  to  make  his  escape,  he  well 
knew,  or  ought  to  have  known,  that  it  was  the  duty  of  his  cus- 
todians to  stop  bis  flight  by  taking  bis  life,  if  it  could  not  be 


I  li'M 


I'  >: 


!  I 


46 


AMERICAN  CRIMINAL  REPORTS. 


accomplished  otherwise.    Code,  §  3443.    Having  gotten  beyond 
their  reach,  his  liberty  still  belonged  to  the  State,  to  whidi 
he  had  forfeited  it,  and  a  duty  rested  upon  those  charged  witli 
his  confinement  to  reduce  him  to  their  custody  again,  and  iii 
doing  so  he  was  entitled  to  no  duty  other  than  humane  treat- 
ment after  being  reduced  to  custody,  and  not  to  be  wantonly  or 
willfully  killed,  if  his  capture  could  otherwise  Ix?  accomplished. 
The  length  of  time  intervening  had  not  made  him  oblivious 
to  the  fact  that  the  custody  of  his  body  belonged  to  the  prison 
whence  he  had  fled,  and  upon  the  sight  of  the  strangers,  and 
hearing  the  words,  "Hold  up,  you  are  my  prisoner,"  he  recog- 
nized  the  presence  of  legal  authority  for  his  capture,    auil 
resumed  the  same  risk  which  he  took  when  he  first  made  his 
escape.     What  else  could  the  officer  have  done?     Should  he 
have  bei^n  required  to  use  only  those  means  necessary  to  arrest 
an  unconvicted  citizen,  which,  if  insuflflcient  to  arrest,  to  allov.- 
him  to  escape,  or  should  he  have  used  those  means  required 
to  prevent  the  originol  escape?     It  appears  to  me  that   the 
officer  did  all  in  his  power  to  capture  him  without  taking  his 
life.    He  gave  him  the  same  warning  that  the  law  allows  to  an 
unconvicted  "outlaw," — first  he  ordered  him  to  stop,  and  tnld 
him  that  he  was  his  prisoner;  then  pursued,  hallooing  "Halt!" 
at  every  jump ;  then  firing  his  pistol  to  warn,  and  lastly  firin!> 
to  hit.     To  have  done  less  would  not  have  been  the  utmost 
effort  of  the  officer. 

In  retaking  him,  the  same  force  Avas  permissible  that  was 
allowable  in  keeping  and  detaining  in  custody  an  "accused" 
person  after  arrest.  Considering  the  law  as  I  view  it  in  this 
case,  the  prisoner  was  justified,  and  ought  to  have  been 
acquitted. 

Clakk,  J.,  concurs  in  the  dissenting  opinion. 


BROOKS  V.   STATE. 

Brooks  v.  State. 

114  Ga.  6—39  S.  E.  Rep.  877. 
Decided  November  5.  1901. 


47 


AnBEST      WITHOUT      WABBi^NT — MURniCR: 

Evidence. 


Trial — Contempt — Practice— 


1.  If  a  policeman,  at  a  late  hour  of  the  night,  hear   a    pistol    shot 

within  two  blocks  of  his  beat,  and  immediately  thereafter  discover 
a  man  running  from  the  direction  of  the  shot  and  towards  him, 
he  has  a  right  to  arrest  him  without  a  warrant.  Where,  under 
such  circumstances,  the  officer  attempts  to  make  the  arrest,  and 
is  shot  and  killed  by  the  person  whom  he  is  seeking  to  arrest, 
the  offense  is  murder,  and  not  manslaughter;  especially  where 
the  slayer  has  in  fact  fired  the  shot  first  heard,  and  has  thereby 
wounded  anofher. 

2.  When  a  person,  without  a  warrant,  illegally  arrests  a  witness  in 

attendance  upon  a  court,  who  has  been  examined,  but  not  dis- 
charged, It  is  not  error  for  the  Judge,  before  the  trial  is  concluded, 
but  out  of  the  hearing  of  the  jury,  to  try  and  punish  such  person 
for  a  contempt  of  court. 

3.  Grounds  of  a  motion  for  a  new  trial,  not  approved  by  the  trial 

judge,  cannot  be  considered  by  this  court. 

4.  The  evidence  warranted  the  verdict,  and  there  was  no  error  in  re- 

fusing a  new  trial. 
(Syllabus  by  the  Court.) 

Error  to  Superior  Court,  Chatham  County;    Hon.  R.  Fal- 
hgant,  Judge. 
Henry  Brooks,  convicted  of  murder,  appeals.     Affirmed. 

Twiggs  £'  Oliver,  for  the  plaintiflF  in  error. 
W.  W.  Osborne,  Solicitor  General,  and  J.  M.  Terrell,  Attor- 
ney General,  for  the  State. 

Simmons,  C.  J.  It  appears  from  the  record  that  Fender,  a 
policeman  in  the  city  of  Savannah,  while  on  duty,  heard  a 
pistol  shot  two  blocks  from  the  street  which  he  was  patrolling. 
Immediately  thereafter  he  saw  a  person  running  towards  him 
from  the  direction  in  which  the  pistol  had  been  fired.  Fender 
was  in  the  uniform  of  a  policetnan,  and  approached  and 
attempted  to  arrest  the  runner,  when  he  was  shot  and  killed  b> 
that  person.     Brooks,  the  plaintiff  in  error,  was  subsequent!.) 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


.    il  ji 


I  i' 


48 


AMERICAN  CRIMINAL  REPORTS. 


arrested,  and  was  indicted,  tried,  and  convicted  of  the  murder. 
There  was  considerable  circumstantial  evidence,  which  tended 
to  establish  that  Brooks  was  the  person  who  shot  the  policeman, 
and  the  direct  testimony  of  one  Avitness  to  that  elfect.  It  was 
proven  that  Brooks  had  sho,  a  man  by  the  name  of  Burns  two 
blocks  away  from  Avhere  Fender  was  killed,  and  that  imme- 
diately after  shooting  Buris,  which  was  at  about  2  o'clock  in 
the  moriiiiii>;  Brooks  ran  in  the  direction  of  Fender.  Brooks 
was  arrested  a  few  minutes  after  Fender  was  shot.  After  con- 
viction JJrooks  made  a  motion  for  a  new  trial.  This  was  over- 
ruled, and  he  excepted. 

1.  One  of  the  £;rounds  of  the  motion  for  a  new  trial  com- 
plains that  the  trial  judge  erred  in  not  giving  in  charge  to  the 
jury  the  law  of  the  oifense  of  manslaughter.  This  ground  does 
not  allege  that  there  was  any  request  that  the  judge  should 
charge  uixin  this  subject.  The  court  does  not  look  upon  such 
complaints  with  much  favor.  It  is  the  duty  of  counsel  in  the 
trial  of  a  case  to  assist  the  court  in  arriving  at  correct  con- 
clusions in  his  charge.  Counsel  ought  not  to  sit  by  and  allow 
the  court  to  commit  error,  if,  by  a  proper  request,  he  could 
correct  it.  This  practice  upon  the  part  of  counsel  seems  to  l>e 
growing.  Many  motions  for  new  trial  are  full  of  these  com- 
plaints,— the  failure  of  the  judge  to  charge  certain  things  which 
are  merely  incidental  to  the  uuiin  questions  in  the  case.  But, 
treating  this  ground  as  a  refusal  on  the  part  of  the  court  to 
charge  the  law  of  manslaughter,  was  it  error?  T'^nder  the  facts 
of  the  case,  we  think  this  was  not  error.  The  deceased  was  a 
policeman  in  the  city  of  Savannah,  and  therefore  an  officer  of 
the  State.  lie  was  in  the  discharge  of  his  duty,  walking  his 
beat,  at  alK)ut  2  o'clock  in  the  morning.  He  heard  a  pistol  shot. 
Immediately  thereafter  he  heard  a  person  running  towards  him 
from  the  direction  in  which  he  had  heard  the  shot,  lie  inter- 
cepted the  fugitive,  and  attempted  to  arrest  him,  and  was  sin  it 
to  death.  He  was  dressed  in  his  policeman's  uniform,  and 
was  near  enough  to  an  electric  light  for  the  slayer  to  see  that 
he  was  a  policeman.  The  policeman,  in  our  opinion,  had  the 
right  to  arrest  the  fugitive  without  a  warrant.  Having  heard 
the  shot,  and  seen  a  person  apparently  fleeing  from  the  place 
where  the  shot  had  been  fired,  he  had  reasonable  grounds  to 
suspect  that  an  offense  against  the  laws  of  the  State  or  of  the 


pw^.iA.  !;« 


BROOKS  V.  STATE. 


49 


municipality  had  been  committed,  and  that  the  fugitive  had 
c'onuriitted  it.  Pen.  Code,  §  89(5,  provides  that  "an  arrest  may 
be  niiiilc  ii>r  a  crime  by  an  officer  .  .  .  without  a  warrant 
if  tlic  offense  is  committed  in  his  presence,  or  the  ofTender  is 

,riivoring  to  escape,  or  for  other  cau?e  there  is  likely  to  Ix;  a 
fMil'uv  of  justice  for  Avant  of  an  officer  to  issue  a  warrant." 
Willie  tlic  policeman  did  not  actually  see  the  pistol  fired,  yet  he 
heard  <Ii"  report,  and  immediately  afterwards  heard  footsteps, 
mill  ^.  w  IJrooks  running  towards  him.  It  is  not  necessary 
that  an  officer  should  actually  see  the  offense  committed  before 
he  can  arrest  without  a  warr;iiit.  If  he  hears  such  a  noise  as 
lo:nl--  him  reasonably  to  believe  that  an  offense  has  been  com- 
inrirfl.  die  offense  is,  under  the  law,  committed  in  his  presence. 
See  liumscy  v.  State,  02  Ga.  53,  17  S.  E.  G13,  and  cases  cited, 
ilorcover,  it  appears  that  the  accused  was  running  when  he  was 
intercepted  by  the  officer.  lie  had  committed  an  offense  againsc 
the  laws  of  the  city  and  of  tl;e  State,  and  was  endeavoring  to 
esca]>e.  We  say  he  was  endc^avoring  to  escape,  because,  wheu 
intercepted,  he'was  running  from  the  scene  of  the  shooting. 
At  2  or  3  o'clock  in  the  morning  there  was  no  opportunity  for 
the  oliicer  to  obtain  a  Avarrant  in  time  to  arrest  the  fleeing 
offcndi  r.  Had  he  stopped  the  pursuit,  and  gone  to  a  magistrat;? 
to  ol)i;i"n  a  warrant,  the  offender  would  certainly  have  (scaped 
fur  the  time  being,  and  possibly  for  good  and  all.  Under  such 
circniiistances  the  officer  had  a  right  to  arrest,  and  the  arres^. 
if  tuiiilc,  would  have  lx?en  legal.  The  accused  had  no  right  to 
resist  II  legal  arrest,  but  should  have  submitted.  When  an  officer 
is  shot  and  killed  by  one  whom  he  is  seeking  legally  to  arrest, 
the  (iffdiso  is  murder,  and  not  manslaughter.  All  tlje  cases  and 
tcxt-lxioks,  so  far  as  we  know,  lay  this  down  as  the  law.  It  is 
esppciiiUy  true  in  a  case  like  the  present,  Avhero  it  appears  that 
the  fugitive  had  .actually  shot  another,  and  was  running  away 
from  the  ])lace  of  the  shooting.  It  was  therefore  not  error  to 
fall  or  refuse  to  charge  upon  the  subject  of  manslaughter  in 
this  case. 

2.  Pending  the  trial  of  the  accuser!,  a  witness  by  the  name 
of  Patterson  was  sought  to  be  impeached  by  a  record  from  the 
courts  of  South  Carolina.  In  order  to  show  that  he  was  the 
person  referred  to  in  such  record,  it  was  necessary  that  he 
should  lx»  identified  by  certain  witnesses  from  South  Carolina. 

Vol.  XIII— 4 


fjjjiffii 


I J . 


u 


y'. 


■'J 


*■(  ■* 


f 


'I'l 


50 


AMERICAN  CRIMIMAL  REPORTS. 


One  of  these  appears  to  have  been  a  sheriflf  of  that  State,  wlio 
had  obtained  a  recpiisition  for  Patterson  from  the  governor  of 
South  Carolina,  The  Governor  of  this  State,  however,  hiul 
never  issued  his  warrant  authorizing  the  arrest.  After  Piit- 
terson  had  been  examined,  he  was  excused,  but  not  dischargeil, 
from  attendance  upon  the  court.  As  he  left  the  court  room,  tlio 
South  Carolina  shorifF,  without  a  warrant,  arrested  him.  When 
the  attention  of  the  judge  was  called  to  this  matter,  he  sent 
the  jury  to  a  room  upon  an  upper  floor,  and  tried  the  sheriff 
for  contempt  of  court.  This  action  of  the  c<mrt  is  complained 
of  in  the  motion  for  new  trial.  It  appears  from  the  record  that 
.  the  jury  did  not  and  could  not  have  heard  the  trial  for  con- 
tempt. Even  if  they  heard,  we  do  not  see  liow  it  could  have 
affected  the  rights  of  the  accused  any  more  than  where  the 
judge  punishes  for  a  contempt  committed  in  his  presence,  any 
other  person  in  attendance  upon  the  court.  It  was  argued  hero 
that  the  jury  might  have  heard  it,  and  have  come  to  the  con- 
clusion that  the  judge  was  in  favor  of  Patterson,  and  wa.j 
protecting  him,  when  counsel  had  announced  an  intention  tu 
impeach  him ;  but  we  think  that  the  action  of  the  judge  cannot 
be  he!d  to  have  had  such  a  tendency.  It  is  true  that  Patterson 
fled  shortly  after  his  release,  but  the  record  shows  that  tlio 
South  Carolina  witnesses  saw  and  identified  him  fully  before 
he  fled,  ard  that  thev  testified  as  to  his  identitv. 

3.  There  were  several  other  special  grounds  in  the  motion. 
which  Avere  either  not  approved  at  all  by  the  trial  judge  or  so 
explained  and  modified  by  him  as  to  make  it  obvious  that  there 
was  no  merit  in  them.  Grounds  not  approved  by  the  trial  judac 
cannot  Ix;  considered  by  this  court  Grounds  in  which,  n^i 
originally  made,  there  would  seem  to  be  error,  must  be  con- 
siderrd  in  connection  with  such  explanations  and  modification.^ 
as  the  trial  judge  may  make  in  approving  them.  Such  ex- 
planations and  modifications  may,  and  frequently  do,  show 
that  there  was  no  error  in  the  ruling  of  which  complaint  is 
made. 

4.  The  theory  of  defense  mainly  relied  upon  here  was  tluit 
the  accused  was  not  the  ])erson  who  phot  the  policeman,  ami 
that  the  verdict  was  contrary  to  law  and  the  evidence.  We 
have  carefully  read  and  studied  the  evidence  in  the  record,  and 
have  come  to  the  conclusion  that  it  was  suffi'.lent  to  auth(jrize 


wan 


STATE  V.  SHAW. 


51 


llio  voriUct.  The  accused  had  shot  Burns  two  blocks  away  from 
the  |)i)liccnuan.  The  latter  intercepted  him,  and  tried  to  arrest 
him,  when  he  shot  and  killed  the  policeman.  The  attempted 
iiMTst  and  the  shooting  of  the  deceased  policeman  were  testified 
to  iHisitively  by  the  witness  Patterson.  Patterson  did  not  assist 
tic  policeman,  nor  call  any  other  officer  at  the  time,  because  he 
said  lio  (lid  not  know  at  the  time  that  the  deceased  was  woiuidcd, 
;is  he,  when  shot,  did  not  fall,  but  started  in  pursuit  of  the 
icciiscd.  It  appears  that  the  homicide  was  reported  in  the 
iiioriiiiiii'  papers,  and  that  Patterson,  when  he  had  seen  this, 
v( |)(irl((l  Avhat  he  had  seen  to  one  of  the  policemen  of  the  city. 
An  attempt  was  made  to  impeach  Patterson,  biit  his  credibility 
was  for  the  jury  to  determine.  Besides  Patterson's  evidence, 
there  was  considerable  circumstantial  evidence  tending  to  show 
the  v:\u\t  of  the  accused.  If  the  State's  evidence  was  true, — ■ 
and  the  jury  seem  to  have  believed  it, — the  accused  was  guilty. 
On  the  whole  we  think  that  the  trial  judge  did  not  abuse  his 
discretion  in  refusing  a  new  trial. 
Judgment  affirmed.     All  the  justices  concuwing. 


mm 


State  v.  Shaw. 

73  Vt  149—50  Atl.  Rep.  863. 

Decided  February  9,  1901. 

AiiRKST — Ho>ficiT)E— Practick:  Re-arrest  of  an  escaped  prisoner — Fatal 
rcsislance  of  such  arrest — Legality  of  former  imprisonment — 
h'ights  of  officer  in  pursuit — Extensive  review  of  the  law  of  arrest 
—Conscientious  scruples  of  jurors  against  capital  punishment — 
Evidence  of  flight — Evidence  of  surveyor  as  to  locality  of  homi- 
cide— Instructions — Photographs  in  jury  room. 

1.  In  a  capital  case,  conscientious  scruples  against  capital  punish- 

ment is  cause  to  challenge  the  juror. 

2.  Unexplained  flight  tends  to  show  guilt;  the  circumstances  of  flight, 

resistance  of  arrest,  etc.,  are  competent  evidence;  they  may  either 
,         cx|)lain  such  flight  as  consistent  with  innocence  or  deepen   the 
inference  of  guilt 


For  ciiHes  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 

this  volume. 


62 


AMERICAN  CRIMINAL  REPORTS. 


3.  The  defendant  being  on  trial  for  homicide  committed  while  resist- 

ing an  arrest,  it  was  competent  to  show  that  defendant  and  his 
father  had  previously  escaped  from  jail  and  were  being  pursued 
by  officers  endeavoring  to  re-capture  them;  and  bearing  on  the 
question  of  intent,  it  was  competent  to  show  that  the  fugitives 
armed  themselves.  Immediately  after  their  escape. 

4.  A  surveyor  who  did  not  see  the  homicide,  but  was  afterward  shown 

thrj  locality,  was  a  competent  witness,  as  to  measurements  and 
p'.an,  showing  locations,  etc. 

5.  Ca  theory  of  self-defense,  it  was  shown  that  deceased,  at  the  time 

of  Llie  homicide,  had  a  rifle,  which  was  afterwards  ascertained  to 
be  foul,  indicating  that  it  had  been  recently  fired  several  times- 
held,  to  1)1'  proper  to  show,  that  the  rifle  in  the  meantime  had 
been  in  the  possession  of  otlier  persons. 

6.  Defendant  was  asked  as  to  his  being  at  a  certain  town  several  years 

previously,  of  which  he  denied  knowledge — held,  that  the  question 
was  proper  to  show  his  whereabouts  and  that  the  answer  was 
harmless. 

7.  The  objection  being  to  the  materiality  and   not  to  the  mode  of 

proof',  it  was  held  proper,  to  show  on  cross-examination  of  de- 
fendant, that  several  years  previously  he  had  pleaded  guilty  to 
a  charge  of  assault;  —  this  bearing  on  his  character  and  moral 
principles  as  a  witness. 

8.  It  is  a  common  practice  in  the  County  Court  of  Vermont,  that  when 

a  prisoner  is  brought  into  Court  l)y  virtue  of  a  capias,  and  has  no 
bail,  to  commit  him  to  jail  without  the  issuance  of  a  mittimus; 
also  if  surrendered  by  his  bail,  fur  the  sheriff,  without  any  express 
order  of  Court,  to  take  charge  of  liini.  The  defendant  and  his 
father  having  been  surrendered  by  his  bail  in  a  deer-killing  case, 
and  also  arrested  upon  a  vapi":,  \\y\OT\  a  burglary  charge,  were 
properly  in  jail  without  any  specific  order  of  conuuitment;  and 
having  broken  jail,  the  sheriff  on  being  so  informed  had  the  right 
to  recapture  them. 

9.  When  a  prisoner  is  surrendered  in  open  Court  by  his  bail,  or  wh(  n 

he  is  arrested  upon  a  capias,  it  is  the  duty  of  the  sheriff,  as  a 
matter  of  law,  to  commit  him. 

10.  A  clerk  of  the  Court,  has  the  right  to  issue  a  capias  for  the  arrest 

of  an  indicted  person,  witlioul  any  express  order  from  the  Court; 
and  this  notwithstanding  the  statute  in  Vermont  for  him  to  issue 
process  on  the  order  of  the  Court. 

11.  At  common  law  an  nrrest  may  be;  made  without  a  warrant  wlien  a 

felony  has  been  committed  and  the  officer  or  person  arresting  lias 
probable  grounds  to  believe  the  person  about  to  be  arrested 
guilty;  and  so  it  is  upon  hue  and  cry. 

in.  Breaking  jail,  is  a  felony  at  common  law. 

13.  A  person  about  to  be  arrested,  who  is  acquainted  with  the  sheriff 
and  knows  of  his  official  position,  has  sufficient  notice  of  surji 
fact;  and  this  applies  both  to  the  principal  officer  and  parties 
assisting  him. 


14.  The  la 
(alioi 

15.  Where 
ful  ai 
the  jt 
rende 

IC.  A  fatal 
out  ac 

17.  It  is  w 
niitted 

IS.  The  op 
arrests 

Kxccptif 

Frank  S 

•    o.xcoptioMs. 

Fniiik  S 

liciii^'  prisfl 

!I,i;'(m1  to  os( 

'liivliiilif  of 

111'  tlu'  Staff 

Iiy  tclcplion 

1'ii,yitiv('s  wf 

(lie  effort   t 

killed  (Jeori 

flioir  ili-ilit. 

ilciice  of  (IhI 

TIk^  Viin'ouJ 

'''f  opiiiioriJ 

Ar<iiic(|  ij 

J.  ,r. 

Jo/i.i  (1. 
II  nj    for  il„j 

(lilbcrl  J 

W'.VTSOXj 

ill  off  eel.   ti 
IN    flic    llcwi 

iiii  opinion 
■-till    Iiii. I 
'■"'iscieiitioil 
i-liiiienr,  iiif 
I'oriiiance  < 


STATE  V.  SHAW. 


53 


1 4.  The  law  does  not  consider  a  lawful  attempt  to  arrest  to  be  a  provo- 

( at  ion. 

15.  Where  the  evidence  of  a  sheriff  showed  a  fatal  resistance  to  a  law- 

ful attempt  to  arrest.  It  was  no'  error  for  the  Court  to  Instruct 
the  jury,  that  If  the  jury  believe  the  sheriff's  testimony  It  would 
render  lastructions  as  to  malice,  etc.,  without  affect. 

IC.  A  fatal  resistance  to  a  lawful  attempt  of  arrest  Is  murder,  with- 
out actual  malice. 

17.  It  is  within  the  discretion  of  the  Court,  to  allow  photographs  ad- 
mitted in  evidence,  to  ro  to  the  jury 'room. 

IS.  The  opinion  contains  extensive  reviews  of  the  law,  relating  to 
arrests.  Imprisonments,  and  the  practice  In  relation  thereto. 

]<]xc('ptioiis  from  Windsor  County  Court;    lion.  Judge. 

Frank  Shaw,  convicted  of  murder  in  the  first  degree,  brings 
exceptidns.     Exceptions  overruled. 

Vviiuk  Shaw  .(the  respondent)  and  liis  fatlier,  Dustin  Shaw, 
lu'lnn'  |)risoners  in  tlie  Windsor  County  Jail,  Vermont,  man- 
aju'cd  to  escape  throngli  an  upper  window,  between  dusk  and 
(lavlinlit  of  April  23  and  24,  11)00.  The  evidence  on  the  |)art 
(if  the  State,  tended  to  show  that,  tlie  sheriff  upon  being  notified 
liv  tcleplione,  started  in  ptirsuit,  with  several  assistants.  The 
fii_i!,i lives  were  overtaken  on  April  2Ttii.  Frank  Shaw  resisted 
tlic  clTdrt  to  re-arrest  them,  and  in  the  resistance  shot  and 
killed  (!eorgo  V,'.  ]Ioffman,  a  deputy.  Both  fugitives  renewed 
their  lliiiht.  Heing  indicted  for  the  killing  of  Hoffman,  evi- 
dence lit"  the  circumstances  of  the  flight  was  given  at  the  trial. 
Tlie  varidus  jjoints  and  exceptions  sufficiently  appeared  from 
lie  <ipilli()ll. 


Argued 
J. 


before  Taft,  C.  J.,  and  Tyler,  Watson,  and  Stafford, 


Joh.i  (1.  Sdrrinil.  State's  Attorney,  and  WHUain  li.  C.  Sllck- 
iicii    l'(ir  I  lie  State. 

Gilbert  A.  Davh,  for  the  respondent. 

Wai'son.  J.  Kxception  ,•>  is  without  avail — the  juror  testified, 
ill  effect,  that  he  had  read  statem(>nts  of  the  facts  of  the  ease 
ill  the  iiews])apers,  from  wliich  \\v  had  formed  and  exi)ressed 
an  opinion  concerning  the  res]»on<lent's  guilt  or  innocence,  and 
i-till  liad  that  opitiion.  He  further  testificnl  that  he  had 
(■nsciciitious  scruples  regarding  the  infiiefiou  of  ca])ital  p\>n- 
i>iniiciit,  and  that  such  scruples  would  affect  him  in  the  per- 
forniaiice  of  his  duties  as  a  juryman.     The  respondent  being 


4  «     s 


\ 


I  ' 


I,     :( 


!•  .■ 


V  I'i 


54 


AMERICAN  CRIMINAL  REPORTS. 


charged  with  murder  in  the  first  degree,  and  the  law  bein<:! 
such  that  capital  i)unishiiicnt  would  be  inflicted  if  he  should  he 
found  guilty  of  that  offense,  it  was  duo  to  the  State  that  no 
person  should  be  permitted  to  sit  in  the  trial  as  a  juror  who 
could  not,  because  of  such  scruples,  determine  the  guilt  dr 
innocence  of  the  rcppnndcnt  upon  the  evidenc»!  and  law,  with- 
out being  hamper(>d  by  a  ])rejudicc  against  the  penalty  fixed 
liy  law— a  prejudice  which  might  be  so  strong  as  to  prevent 
an  agreement  of  murder  in  the  first  degree,  regardless  of  tlu 
conclusiveness  of  the  evidence  tending  so  to  show.  Tiie  State, 
as  well  as  a  respondent,  is  entitled  to  a  jury  that  will  determiiu' 
the  case  upon  the  law  and  the  evidence,  and  a  true  verdict  give, 
witliout  Ix'ing  controlled  by  such  scruples  as  tend  to  thwart 
justice.  In  excusing  the  juror,  the  discretion  of  the  court 
was  properly  exercised,  and  no  rights  of  the  respondent  w(>rc 
invaded  or  prejudiced  thereby.  Qiiinn  v.  UaJhert,  57  Vt.  ITS. 
The  number  of  jieremptory  challenges  to  which  the  rcs])ondent 
was  entitled  is  fixed  by  statute,  and  additional  like  challenges 
could  not  be  had  by  him  as  a  matter  jf  law. 

Exceptions  7,  8,  and  12:  Subject  to  respondent's  exception, 
the  State  was  permitted  to  show  all  that  occurred  after  the 
homicide  in  resjiect  to  the  flight  and  pursuit  of  the  respondent 
to  the  time  of  his  arrest  near  ^liddlebury.  It  is  well  setthd 
that  evidence  tending  to  show  flight  of  a  respondent  inunediiifcly 
•after  the  connnission  of  tlie  alleged  offense  with  which  lie 
stands  charged  is  admissible,  and  unexplained,  tends  to  sliow 
guilt.  As  the  probative  force  of  such  testimony  may  be  les- 
sened or  wholly  taken  away  by  evidence  on  the  part  of  a 
respondent  tending  to  explain  such  flight  upon  some  theory 
other  than  that  of  giiilt  of  the  crime  charged,  it  is  proper  t(» 
show  the  extent  of  the  flii.>ht,  together  with  the  actions  and  the 
doings  of  the  respondent  that  tend  to  characterize  it,  inclu(lin<i; 
resistance  of  known  oflicers  in  attempting  his  arrest ;  for  such 
actions  and  doings  on  the  one  hand  may  satisfactorily  explain 
the  flight  upon  the  theory  of  innocence,  while  on  the  other 
hand  they  may  place  it  beyond  explanation  upon  ^ny  theoiy 
other  than  that  of  guilt.  These  exceptions  were  not  well  taken. 
Wills,  Circ.  Ev.  130-137;  State  v.  Chase,  68  Vt.  405,  35  Atl. 
836. 

Exceptions  9  and  10:    The  evidence  showing  the  imprison- 


STATE  V.  SHAW. 


55 


meiit  of  the  respondent  and  his  father  in  the  jail  at  Woodstock, 
and  their  cscaiK'  therefrom,  was  admissible  as  tending  to  show 
till)  reason  why  the  shcril?  of  the  county  and  his  assistants  wen; 
ill  jnirsnit  of  them  at  the  time  of  the  homicide,  and  as  tending 
to  show  that  the  purpose  of  the  pursuing  party  was  to  appre- 
hend, and  not  to  injure,  them.  It  was  also  admissible  upon 
tlic  (lucslion  of  the  respondeJit's  intent  when  he  find  the  fatal 
slidt.  it'  he  wiis  contined  in  jail  and  escaped  therefvom,  and 
iiiinicd lately  upon  such  escajie  armed  himself  with  a  rille  to 
carry  in  his  flight,  such  evidence  had  a  strong  tendency  to 
show  that  the  respondent  'intended  therewith  to  resist  the 
(iinccrs  of  the  law  in  case  he  was  pursued  by  them,  as  he  had 
nason  to  supjMJse  he  would  be.  Staie  v.  Taylor  tO  W Donald, 
TO  N't.  1,  ;{'.)  Atl.  447,  42  L  11.  A.  073,  07  Am.  St.  Jlep.  04S. 

Kxception  11:  The  witness  (Miarles  IJatchelder,  a  survcvov, 
was  pciMuitted  to  testify  that  after  the  homicide  certain  ]>lacert 
were  |Miinted  out  to  him  by  Spaiford  as  the  places  where  Slicritt" 
Spallord  stood,  where  Iloifnuui  stood,  and  where  the  res])oii(Ient 
stodd  at  the  time  of  the  homicide,  and  that  the  witness  iiiadi' 
iiuasiircnu  iits  relative  to  them,  and  a  p'an  showitig  the  relative 
local  ions  of  those  places,  and  their  distances  from  each  (.ther. 
The  plan  was  objwted  to  by  the  I'csiMmdent,  b<?cause  th(^  places 
indicated  thereon  were  ]daces  shown  the  surveyor  by  other 
jKTsoMi*.  Si)aiford  was  imjjroved  by  the  State  as  a  witness, 
and  gave  testimony  of  the  surroundings  and  the  positions  of 
ihe  respective  persons  at  the  time  of  the  homicide,  and  test! tied 
al^^>  that  later,  at  tho  place  of  the  homicide,  he  pointed  »iut 
these  ])ositions  to  the  witness  IJatcludder.  The  latter  Avas  not 
present  at  the  time  of  the  homicide,  and  it  became  necessary 
for  some  one  who  was  present  and  had  knowledge  thereof  to 
point  out  to  him  the  location  of  the  respective  persons,  that 
ho  might  make  the  proper  measurements,  and  place  the  loca- 
tions with  accuracy  upon  his  plan.  This  is  the  only  way  it 
Pduld  be  done,  and  the  plan  was  properly  admitted  in  evidence. 

Exception  I.'j:  The  evidence  of  tho  State  tended  to  show 
that  when  the  sheriif  and  his  assistant,  Hoffman,  came  upon 
the  escaped  prisoners,  the  latter  seized  their  rifles  and  brought 
tlirni  to  their  shoulders,  the  father  aiming  at  the  sheriff  and 
the  respondent  at  Hoffman;  that  thereupon  the  sheriff  eallol 
upon  them  to  siirrender,  and  said  to  them,  in  substance,  that 


i   ' 


'1' 

i  r 


;     I, 

In 

!      'I 


i  I 


if: 


I: ;, 


bti 


AMERICAN  CRIMINAL  REPORTS. 


there  must  be  no  shooting,  to  vvhicli  the  respondent's   father 
iiii.«\vere(l  in  the  same  way,  and  lowered  his   rifle;    that   tli.' 
reH|M)ii(lent  did  not  lower  his  rifle,  but  continued  to  hold  ii 
ainieil  at  Ilofiuian,  vvliereu|)on  Iloffnuin  said  to  the  respondeni, 
"i'rank,  lower  that  gun  or  1  will  bore  you,"  repeating,  "'Dnii) 
that  gun,  1  tell  you;"  that  then  the  resixuident  fired  and  lloil'- 
nuiii  fell.     The  respondent  testified  to  seeing  and  recogni/.iiii; 
Spatl'tird  before  any  shot  was  fired,  to  kiu)wing  that  he  was  tli" 
.sheiilF,  to  uuderslaiiding  that  Ire  was  there  to  arrest   the  re- 
s])on(l('Ut  for  breaking  jail,  to  hearing  the  voiee,  ordering  him 
to  dnip  his  gun,  but  to  not  seeing  lloff'nmn.     The  responilent's 
evidence  tenchd  to  simw  tiiat  Jloffman  bad  a  rifle  aixl  lired  ii 
at  llie  nspondent, — the  bullet  whizzing  i)ast  his   faee, — wlm, 
in  tin-  exeiteinent  of  the  luoment,  unintentionally  discbargel 
his  rilie,  and  Ilofliium  was  hit.     The  State's  evidence  tendcil 
to  show  that,  when  iloffnum's  rifle  was  picked  iij),  it  had  Udt 
been  discharged.     This  rifle  had  Ikmmi   borrowed  by    IIolTiuau 
f»f  (itie  Dr.  Stevens,  to  whom,  some  days  later,  it  was  returned. 
luipr((ve(l  by  the  respoiuh'nt  as  a  witness.  Dr.  Stevens  t«'stifie(l, 
in  substance,  that  the  rifle  was  a  nuigazinc  loader,  and   Wiis 
loaded   with    IT)  cartridges  when  he  lout  it  to   ]IofTnuin,   and 
that  wiu  11  it  was  returned  to  the  witness  the  rifle  was  foul  ami 
bore  evidence  of  having  been  fired  several  times.     To  meet  thi-: 
testiiiiniiy,  the  State  was  permitted  to  show  in  rebuttal,  subject 
to  cxci  ption,  that  the  rifle  was  in  the  hands  of  several  differoiii; 
porsdiis  and  left  in  different  places  iKitween  the  time   it  w:ir 
picked  up,  after  the  homicide,  and  the  time  when  it  was  re- 
tuniel  to  its  owner.     This  evidence  tended  to  show  that  \h'\ 
rifle  may  l-ave  been  foul  when  it  was  returned  to  Dr.  Stevens 
and  yet  not  have  In'oii  discharged  by  Hoffman.     Therefon;  it 
was  legally  admissible  in  rebuttal. 

Exception  1(5:  The  respondent  took  the  stand  and  testifiei! 
in  his  (wu  behalf.  In  cross-examination,  he  was  asked  if  In: 
was  in  tli(!  town  of  Kingsbury,  N.  Y.,  in  June,  1SI)7,  and. 
subject  to  exception,  answered  not  to  his  knowledge,  and  that 
he  (lid  not  know  where  the  town  of  Kingsbury  is.  Not  onlv 
was  this  question  jiroper  for  the  purpose  of  showing  the  wheiv- 
ab*)uts  of  the  res|)ondeiit,  but  the  answer  was  harmless.  Tin- 
resp.  ii<lont  was  then  asked  whether  on  the  22d  day  of  June, 
1897,  he  waa  before  Jesse  Waitman,  a  justice  of  the  peacn, 


STATE  V.  SHAW. 


5? 


to  answer  to  the  charge  of  assault,  and  he  answorcd  llmt  he 
\v;is.  Jle  was  then  asked,  "And  to  that  did  you  ph'tid  ^^nihy  i'' 
'ilic  rcsitondent  objected  to  this  question  on  the  ground  that  it 
WHS  iiimiiiterial.  llie  witness  was  allowed  to  tuiswer  it,  sub- 
ject to  exception,  and  answered  that  he  did.  The  iiio(k'  of  the 
jirouf  is  not  in  question.  The  objection  was  conliiied  to  its 
iMiilcriidily.  The  evidence  had  a  nuUerial  bearing'  on  (he  re- 
spoiuleiit's  present  character  and  moral  principles  us  a  witness, 
iiml  was  properly  received,  in  the  discretion  of  the  court,  to  he 
coiisidcn  (I  by  the  jury  in  determining  the  weight  to  be  given 
to  tic  respondent's  testimony.  iSlatc  v.  Slack,  (it)  Vt.  ISO,  38 
All.  ;ill.  - 

Till'  respondent's  counsel  submitted  a  largo  nundn-r  of  re- 
epu'sls  to  charge,  and  exce'j)tee|  to  the  refusal  e»f  (lie^  e/ourt  to 
cdiiiply  wiih  each  rcepu'st;  but  in  his  argume-nt  be'tore  this 
cenirt  llic  cetunsel  relieel  upem  anel  urgeel  erre)r  in  the  nou- 
ce>iiipliane*e  of  the  court  with  the  lirst  seven  only. 

Tlie'  repe^rter's  transcript  of  the  whe)le  case  is  rejfe'rred  to  in 
the'  e'xe*eptietns,  that  a  full  unelerstaneling  of  Ihe-ie  re'epu'Sts 
aiui  the'  e-xce'ptietns  taken  to  the  charge  \i\»y  be  bael.  The  case 
shows  lliat  while  the  re'speinelent  anel  his  fatiier,  Dustin  Shaw, 
weTi'  luieh'r  conHnenu'nt  in  Windsor  County  Jail,  and  be'twcen 
iliisk  of  the  cveniu;*?  of  the  2Jkl  day  of  April,  li)()(),  anel  elay- 
liglit  on  the  folletwing  me)rning,  they  broke  jail;  that  as  se)on 
lis  the'  te'le'|)he»nc  e)tlice  was  e)pen  the  dei)uty  jaile>r  n»)tiiie'el  the' 
sherill"  of  the  ceuuity,  Mr.  Sj)atfe>rd,  of  what  hael  hanpene'il,  and 
Spatl'onl  vent  by  the  8  o'cleick  train  to  Weiodstex'k,  and  thence 
he  and  the  dejmty  jailer  started  in  pursuit  etf  the'  escaped 
jjrisoncrs.  This  was  on  Tueselay,  and  pursuit  was  maele  on 
eae'h  snccessivo  day  thereafter  until  Frielav,  whe'ii  Sheriff 
Spafl'ord,  with  one  of  his  ehputies,  George  W.  llejffman,  who 
hael  l)e'e'n  sunnnoneel  by  the  sheriff  to  assist  him  in  the  ])ursuit, 
e'anic  \\\)ox\  the  escaped  priseiners  in  a  pasture  in  the  town  of 
Ste)e'kl)rielge,  where  the  homiciele  was  eemnnitted.  On  January 
20,  I'.lOO,  an  information  charging  the  respondent  {inel  his 
father  with  unlawfully  killing  deer  was  filed  in  Winelsor  Cejunty 
C\)Ui't ;  they  were  arrchted  on  a  capias  issued  there'on,  bail  was 
fixcel  by  the  court,  and  on  February  10  they  were  releaseel  on 
hail.  Oil  February  22  they  were  surrendered  in  conrt,  anel  the 
hail  was  discharged^  whereupon  they  were  committed   to  jail 


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58 


AMERICAN  CKIMINAL  REPORTS. 


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by  the  shcriflF,  or  his  deputy,  without  any  mittimus  there  for. 
On  February  21  an  information  charging  them  with  burglary 
was  filed  in  the  same  court,  a  capias  was  issued  and  they  were 
arrested  thereon,  their  bail  was  fixed  by  the  court,  and  for  want 
of  bail  they  were  conunitted  to  jail  on  the  capias.  Thus,  for 
want  of  bail  in  the  two  cases,  the  respondent  and  his  father 
were  in  jail  at  the  time  of  their  escajjc  therefrom. 

It  is  arg-ued  that  the  respondent  and  his  father  were  illegally 
imprisoned,  and  that  in  breaking  jail  they  were  guilty  of  no 
oriuiinal  offense  under  the  law,  by  reason  whereof  neither  the 
sheriff  nor  his  deputy,  Hoffman,  had  any  ri^.it  to  pursue  and 
arrest  them  \\'ithout  a  Avarrant  therefor.  But  the  right  thus 
to  pursue  and  arrest  the  escaped  prisonei's  without  warrant  did 
not  necessarily  depend  upon  the  legality  of  the  imprisonment. 
By  common  law  a  sheriff  is  ex  officio  a  conservator  of  the  peace, 
and  is  not  only  permitted,  but  required,  to  take  a  felon,  and 
if  ne  omits  his  duty  he  is  indictable  and  subject  to  fine  and 
imprisonment.  Herein  it  is  not  material  whether  the  sheriff 
see  the  felony  committed,  or  by  complaint  or  information  have 
reasonable  cause  to  suspect  that  a  felony  has  been  committed ; 
for  as  well  in  one  case  as  in  the  other  he  is  bound  to  appre- 
hend the  felon,  and  to  that  end  to  make  search  after  him  within 
the  limits  of  his  jurisdiction  and  to  raise  hue  and  cry  upon 
him.  2  Hale,  P.  C.  85,  91.  A  sheriff,  too,  is  justified  in 
pursuing  and  arresting  suspected  felons  of  his  own  accord, 
without  any  warrant,  even  though  it  should  afterwards  apjiear 
that  no  felony  has  been  committed.  Samuel  v.  Payne,  1  Doug. 
358;  Beckivith  v.  Philby,  6  Barn.  &  C.  6S5]  Davis  v.  Russell, 
5  Bing.  354;  Rohan  v.  Sawin,  5  Oush.  281 ;  Slate  v.  Taylor,  70 
Vt.  1,  39  Atl.  447,  42  L.  R.  A.  673,  67  Am.  St.  Rep.  648. 
The  test  therefore  is,  did  the  sheriff  have  reasonable  cause  t<i 
suspect  that  a  felony  had  been  committed  by  the  respondent 
and  his  father?  If  the  facts  which  are  supposed  to  constitute 
the  probable  cause  are  found  by  the  jury,  or  if  there  is  no 
dispute  in  the  evidence  showing  such  facts,  as  in  the  case  at 
bar,  the  question  of  probable  cause  is  one  of  law  and  for  the 
court.  Davis  v.  Russell,  5  Bing.  354;  Perry  v.  Sulier,  92 
Mich.  72,  52  N.  W.  801 ;  }Yhite  v.  McQueen,  96  Mich.  249, 
55  N.  W.  843. 

Breaking  jail  by  a  person  lawfully  imprisoned  therein  for 


ETATE  V.  SHAW. 


59 


any  cause  whatsoever,  whether  criminal  or  civil,  is  a  felony 
at  common  law.  2  Hawk.  P.  C.  183.  And  such  it  is  by  tho 
laws  of  this  State.     V.  S.  §§  509^,  6166. 

It  lias  been  the  common  practice  in  the  county  courts  of  this 
S  til  to,  when  a  respondent  is  brought  into  court  on  a  capias 
issued  on  an  information  or  indictment,  if  he  have  no  bail, 
that  he  be  committed  to  jail  on  the  capias,  and  for  the  sheriff 
to  take  charge  of  respondents  delivered  in  court  in  discharge  of 
bail,  and,  if  they  have  not  fresh  bail,  to  commit  them  to  jail 
without  any  mittimus  or  express  order  of  the  court  for  that 
purpose.  The  commitments  of  the  respondent  and  his  father 
in  the  burglary  case  and  in  the  deer-killing  case  were  in  accord- 
ance with  this  practice;  and  the  sheriff,  upon  receiving  the 
information  by  telephone  from  the  deputy  jailer  that  they 
had  broken  jail,  with  the  further  information  received  by  him 
at  Woodstock  relative  thereto,  and  of  their  flight,  had  reason- 
able cause  to  suspect  that  a  felony  had  been  committed  by  them, 
and  in  such  circumstances  the  law  made  it  his  duty  to  pursue 
and  arrest  the  supposed  felons  at  once,  because  he  could  not 
determine  Avhether,  in  point  of  law,  they  were  guilty  of  break- 
ing jail  or  not  imtil  they  were  brought  to  trial,  which  could 
not  be  until  they  are  apprehended.  2  Hale,  P.  C.  03 ;  Cowles 
i\  Diiuhar,  2  Car.  &  P.  565. 

As  it  was  the  duty  of  the  sheriff  to  pursue  and  arrest  the 
esca])('d  prisoners — for  he  had  reasonable  cause  to  suspect  they 
had  committed  a  felony, — the  fact  whether  they  were  legally 
confined  in  jail  became  iramaterial,  and  the  first,  third,  and 
f^evonth  requests  were  unsound  in  principle  and  properly  re- 
fused. However,  on  the  exception  to  the  refusal  of  the  court 
to  charge  according  to  the  second,  fourth,  fifth,  and  sixth 
requests,  the  legality  of  the  commitments  of  the  respondent  and 
hU  father  without  mittimus  is  before  us  for  determination. 
Ecyond  the  bearing  of  this  question  in  the  case  at  bar,  in  view 
of  the  practice  in  this  State  of  committing  respondents  to  jail 
n])on  a  capiat  for  want  of  bail,  and  without  mittimus  when 
surrendered  in  court  in  discharge  of  bail,  the  question  is  far- 
reaching,  of  much  importance,  and  requires  careful  considera- 
tion. 

By  the  terms  of  the  capias  isstied  in  the  burglary  case,  the 
officer  was  commanded  to  take  the  bodies  of  the  respondent  and 


i;  )? 


r 


60 


AMERICAN  CRIMINAL  REPORTS. 


his  father,  and  them  forthwith  have  before  the  county  court, 
then  in  session  at  Woodstock,  to  anewer  to  the  information,  and 
to  do  and  receive  what  should  be  considered  and  adjudged  by 
the  court  in  the  premises ;  but  it  is  said  that  they  were  at  once 
committed  to  jail  without  being  taken  before  the  court,  aa 
commandec'  by  the  capias,  and  thus  there  remained  until  their 
escape  therefrom.  The  docket  entries  wore  introduced  in  evi- 
dence to  show  what  had  been  done  by  the  court  in  that  action. 
This  was  proper  evidence  (Armstrong  v.  Colby,  47  Vt.  359), 
and  it  appeared  therefrom  that  the  respondent's  bail  was  fixed 
by  the  court,  an  act  which  carries  with  it  by  intendment  the 
fact  that  the  respondent  was  then  before  the  court;  for  the 
bail  of  a  respondent  charged  with  felony,  unless  there  can  be 
a  \vaiver  upon  his  part  (a  question  upon  which  we  give  no 
intimation),  cannot  properly  be  fixed  in  his  absence.  The 
record  importetl  absolute  verity,  and  was  not  subject  to  con- 
tradiction. Mosseaux  v.  Brigham,  19  Vt.  457;  Farr  v.  Ladd, 
37  Vt.  156. 

In  Armstrong  v.  Colby,  47  Vt.  359,  the  effect  of  a  verdict 
upon  which  no  judgment  in  express  terms  was  shown  to  have 
been  rendered  was  under  consideration.  The  docket  entries 
showed  a  verdict ;  also,  exceptions  allowed  and  execution  stayed 
The  court  said  that  there  could  be  no  execution  to  be  stayed 
without  a  judgment,  and  therefore  the  docket  entries  showed  a 
verdict  and  judgment  thereon,  and  that  in  some  of  the  county 
courts  of  the  state  the  practice  had  been  to  make  no  formal 
entry  of  judgment  on  verdicts,  but  to  treat  all  verdicts  left  to 
stand  as  having  judgment  rendered  thereon,  and  to  have  the 
records  made  up  accordingly.  Sec  also.  People  v.  Nevins,  1 
Hill,  154. 

It  is  argued  that,  when  the  officer  had  brought  the  respondent 
and  his  father  before  the  court,  the  force  of  the  capias  was 
exhausted,  and  they  could  be  committed  to  jail  only  upon  a 
mittimus  issued  for  that  purpose.  Notwithstanding  a  capias 
only  commands  the  sheriff  to  arrest  the  respondent  named 
therein,  and  forthwith  have  him  before  the  court,  the  respondent 
remains  in  the  custody  of  the  sheriff  by  virtue  of  the  capias 
until  lip  has  bail,  and,  if  he  have  no  bail,  the  law  makes  it  the 
duty  of  the  sheriff  to  commit  him  to  jail,  and  this  he  may  do 
upon  the  capias;   and,  when  a  respondent  is  thus  committed 


i  \ 


STATE  V.  SHAW. 


61 


for  want  of  bail,  it  is  proper  for  the  sheriff  to  state  that  fact 
in  his  return. 

In  2  Hawk.  P.  C.  174,  §  1,  it  is  said:  "There  is  no  doubt 
but  that  persons  apprehended  for  offenses  which  are  not  bail- 
able, and  also  all  persons  who  neglect  to  offer  bail  for  offenses, 
which  are  bailable,  must  be  committed."  And  in  2  Ilale,  P.  C 
123 :  **if  the  prisoner  be  bailable,  yet  the  justice  is  not  bound 
to  demand  bail,  but  the  prisoner  is  bound  to  tender  it;  other- 
wise, the  justice  may  commit  him.  And  so  of  a  sheriff  that 
hatli  taken  a  man  by  capias  where  he  is  bailable."  And  in  1 
Hale,  P.  C.  610,  in  speaking  of  the  crime  of  breaking  prison, 
it  is  further  said:  "But  if  B.  be  indicted  or  appealed,  and 
taken  by  capias,  and  committed,  and  break  prison,  there  needii 
no  averment  or  proof  that  a  felony  was  done,  but  only  that 
there  was  an  indictment  or  appeal,  and  a  capias  thereupon, 
because  all  appears  by  matter  of  record."  And  Lord  Coke,  in 
discussing  the  same  subject  said :  "Imprisonment  is  a  restraint 
of  a  man's  liberty  under  the  custody  of  another  by  lawful 
warrant  in  deed  or  in  law.  Lawful  warrant  is  when  the 
offense  appeareth  by  matter  of  record,  or  when  it  doth  not 
appear  by  matter  of  record.  By  matter  of  record,  as  when 
the  party  is  taken  upon  an  indictment  at  the  suit  of  the  ki'ng, 
or  ujion  an  appeal  at  the  suit  of  the  party.  When  it  doth 
not  ..ppear  by  matter  of  record,  as  when  a  felony  is  done, 
and  the  offender  by  a  lawful  mittimus  is  committed  to  the  jaiL 
for  the  same.  But  between  these  two  there  is  great  diversity. 
For  in  the  first  case,  whether  any  felony  were  committed  or 
no,  if  tlie  offender  be  taken  by  force  of  a  capias,  the  warrant 
is  lawful ;  and,  if  he  break  prison,  it  is  felony,  albeit  no  felony 
were  committed.  But  in  the  other  case,  if  no  felony  be  done  at 
ail,  and  yet  he  is  committed  to  prison  for  a  supposed  felony, 
and  break  prison,  this  is  no  felony,  for  there  is  no  cause."  2 
Co.  Inst.  590. 

The  case  of  State  v.  Lamoine,  53  Vt.  568,  is  relied  on  by  tho 
respondent  as  authority  that  when  the  respondent  and  his 
father  were  brought  into  court  on  the  capias  in  the  burglary 
case,  and  failed  to  procure  bail,  their  commitment  could  be 
only  by  order  of  court  and  on  a  mittimus  issued  for  that  pur- 
pose; but  in  Kent  v.  Miles,  68  Vt.  48,  33  Atl.  708,  that  case 
is  criticised,  the  court  saying  that  in  the  disposition  of  the 


i'i 


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,  i  ■ 


it .. 


62 


AMERICAN  CRIMINAL  REPORTS. 


case  it  was  not  necessary  to  call  in  question  the  sufficiency  of 
the  warrant.  It  will  be  seen  on  examination  of  State  v.  La- 
moine,  that  what  is  there  said  in  the  opinion  and  here  relied 
upon  by  the  respondent  as  authority  supporting  his  contention 
are  mere  obitei-  dicta,  with  no  force  as  a  judicial  determination. 
It  is  also  argued  in  behalf  of  the  respondent  that,  when  ho 
and  his  father  were  surrendered  in  court  in  discharge  of  bail, 
and  had  not  fresh  bail,  they  could  then  be  committed  to  jail 
only  upon  a  mittimus  issued  for  that  purpose.  Had  they  beeii 
surrendered  in  discharge  of  their  bail  in  a  eoui't  of  limited 
jurisdiction  and  not  of  record,  this  contention  would  have  mor'- 
force ;  but,  since  that  question  is  not  now  before  us,  we  express 
no  opinion  whether  it  would  be  necessary  to  issue  a  mittimus, 
or  whether  a  commitment  could  be  made  upon  the  original 
Avarrant.  In  the  case  at  bar,  they  were  surrendered  in  dis- 
charge of  their  bail  in  a  court  of  record  and  of  general  juris- 
diction, and  there  would  seem  to  be  no  doubt  as  to  the  Itnv 
upon  that  question.  In  Hale,  P.  C.  583,  .584,  in  speaking 
of  what  is  to  be  done  after  the  warrant  is  served  and  the  person 
accused  is  brought  before  the  justice  thereupon,  it  is  said :  "If 
the  accused  be  bailable,  he  may  bail  him.  If  he  have  no  bail,  or 
the  case  appears  not  to  be  bailable,  he  must  commit  him.  And 
being  either  bailed  or  committed,  he  is  not  to  be  discharged 
till  he  be  convicted  or  acquitted  or  delivered  by  proclamation. 
And  this  leads  me  to  the  mittimus  or  the  wai  ^X  of  the  jailor 
to  receive  him ;  and  this  is  the  ground  of  the  felony  in  case  of  .i 
breach  of  prison.  My  I^rd  Coke  (2  Inst.  591)  makes  three 
essential  parts  of  the  mittimus.  First,  that  it  be  in  writing, 
sealed  by  the  justice  that  commits,  and  without  this  part  the 
commitment  is  unlawful,  the  jailer  is  liable  to  a  false  impris- 
onment, and  the  Avillful  escape  by  the  jailer,  or  breach  of  prison 
by  the  prisoner,  makes  no  felony.  But  this  must  not  be  in- 
tended of  a  commitment  in  a  court  of  record,  as  the  King's 
Bench,  Jail  Delivery,  or  Sessions  of  the  Peace;  for  there  tin 
record  itself,  or  the  memorial  thereof  which  may  at  any  tinio 
be  entered  of  record,  are  a  sufficient  warrant  without  emy  war- 
rant under  seal."  It  is  also  said  in  1  Backus,  150:  "Thougli 
a  commitment  by  a  magistrate  ought  to  be  under  his  hand  an  1 
seal,  yet  a  commitment  by  a  court  of  record,  without  such  wnv 
rant,  is  sufficient ;  for  the  record  itself,  or  the  memorial  thero- 


\m 


STATE  V.  SHAW. 


63 


of  which  may  at  any  time  be  entered  of  record,  will  protect  the 
jailer  from  false  imprisonment,  for  which  ho  is  liable  for  an 
unlawful  detention."  Such  is  the  law  as  laid  down  in  3  Co. 
Inst.  c.  100,  and  in  1  Burn,  J.  P.  (22d  Ed.)  G04.  In  Ex 
parte  Whitchurch,  1  Atk.  55,  an  order  that  Whitchurch  should 
fc  and  committed  was  imder  consideration,  and  it  was  held  by 
Lord  Ilardwicke  that,  if  the  man  had  been  present  in  court 
when  the  order  was  pronounced,  he  was  instantly  a  prisoner, 
and  the  warden  might  have  taken  him  away  to  jail  directly. 
In  King  v.  Clarke,  1  Salk.  349,  upon  a  return  in  habeas  corpus 
proceedings,  it  wps  resolved  that,  where  a  commitment  was  in 
court  to  a  proper  officer-  present,  there  was  no  warrant  of  com- 
mitment, and  therefore  a  warrant  could  not  be  returned  in  haec 
verba,  but  the  truth  of  the  whole  matter  must  be  returned  un- 
der peril  of  the  action.  In  Bethel's  Case,  5  Mod.  19,  the  re- 
turn to  a  habeas  corpus  showed  that  the  prisoner  was  committrd 
to  the  custody  of  the  jail.r  by  virtue  of  an  order  of  the  court 
of  sessions  that  he  pay  a  Hue  of  £1,000,  and  that  he  remain  in 
tbe  custody  of  the  jailer  until,  etc.  The  jailer  did  not  have 
ihe  custody  of  the  prisoner  until  the  commitment  was  made  on 
this  order.  It  was  held  by  Lord  Chief  Justice  Holt  that  al- 
though the  order  should  have  been  that  the  prisoner  be  commit- 
ted, for  he  could  not  remain  in  such  custody  unless  there  had 
been  a  commitment,  the  order  was  sufficient,  and  the  prisoner 
was  remanded. 

In  State  v.  Ilcathman,  Wright,  690,  the  defendant  was 
brought  before  a  justice  on  a  complaint  under  the  bastardy  act, 
and  duly  recognized  to  appear  in  the  court  of  common  pleas 
to  answer  the  complaint  and  abide  the  order  of  the  court  there- 
on, lie  was  found  guilty,  and  the  court  ordered,  among  other 
things,  that  he  stand  committed  until  the  order  for  payment, 
etc.,  be  complied  with.  Under  this  order  he  was  imprisone  1 
until  he  swore  out  of  jail,  but  ihere  was  no  mittimus  given  to 
the  sheriff.  The  court  said:  "The  record  of  the  Common 
Pleas  shows  the  order  to  commit  made  in  open  coui't.  In  such 
cases  a  mittimus  is  not  necessary.  The  order  of  the  court  to 
the  sheriff  is  his  author  !ty,  and,  the  evidence  of  it  being  pre- 
served on  recorrl,  no  writ  or  copy  of  the  order  was  necessary," 
See,  also.  People  v.  Nevins,  supra. 

The  "memorial"  referred  to  in  some  of  the  above-named 


>    i' 


■■■■■■HII 


64 


AMERICAN  CRIMINAL  REPORTS. 


authorities  iiioana  in  law  a  short  note,  abstract,  memorandum, 
or  rough  draft  of  the  orders  of  court,  from  which  the  records 
thereof  may  at  any  time  be  fully  made;  and  the  docket  entries 
may  well  answer  thereto.     The  docket  entries  in  the  deer-kill- 
ing case  slioAv  that  tlie  respondent  and  his  father  were  surren- 
dered in  court  in  discharge  of  their  bail;  but  it  does  not  appear 
therefrom  that  they  were  in  fact  ordered  into  the  custody  of 
the  shcriif,  nor  that  their  commitment  was  expressly  ordered 
b\  the  court,  nor  ihat  any  ndttimus  was  issued.     However,  for 
th'jse  to  ai)])tar,  in  fact,  is  not  essential  to  their  legal  commit- 
ment to  jail.    The  sheriff  is  the  officer  of  the  court,  and  when 
a  persnn  cliai-gcd  with  crime  is  surrendered  in  court  in  dis- 
charge of  his  bail  if  ho  have  not  fresh  bail,  he  is  then,  by  op- 
eration of  law  and  without  any  general  or  special  order  of  the 
court,  in  tlie  custody  of  the  sheriff,  whose  duty  it  is  to  take 
charge  of  persons  before  the  court  accused  of  crime.    Otherwiso 
when  a  rcsi)ondent  is  thus  delivered  in  court,  he  is  in  the  cus- 
tody of  no  one,  and  is  at  liberty  to  go  whither  he  will.    In  this 
regard  there  would  seem  to  be  no  difference  between  a  person 
surrendered  in  court  in  discharge  of  his  bail  and  one  put  upon 
trial  for  a  criminal  offense;  and  in  the  latter  case  at  common 
laAV,  though  modified  by  statute  (V.  S.  §  1981),  he  was  by  op- 
eration cf  law  committed  to  the  custody  of  the  sheriff,  and  there 
was  no  necessity  for  either  a  general  or  special  order  mandatory 
to  that  officer.     From  that  moment  the  accused  was  in  legal 
custody,  and  the  sheriff,  as  executive  officer,  was  charged  with 
his  safe-k(  oping.    Hodges  v.  State,  8  Ala.  55. 

The  question  then  arises,  is  it  necessary  in  such  circum- 
stances f(  r  the  court  to  make  an  express  order  of  commitment 
for  want  of  bail  ?  As  has  been  seen  in  Hale's  and  in  Hawkins' 
Pleas  of  the  Crown,  the  law  requires  that  in  a  case  not  bailable, 
or  if  the  respondent  fails  to  procure  bail,  he  shall  be  coramittc  1 
to  jail ;  and  in  practice  it  has  never  been  deemed  necessary  for 
the  court  to  make  an  express  order  that  a  respondent  be  com- 
mitted to  jail  for  want  of  bail.  Unless  an  order  for  that  pui- 
pose  is  expressly  given  in  a  particular  case,  the  sheriff  acts 
under  the  law  and  a  general  continuing  order  of  the  court  to 
that  effect,  and  there  is  no  good  reason  why  sv.c-a  practice  may 
not  obtain ;  nor  is  there  any  substantial  reason  why,  when  tlir; 
respondent  is  thus  in  custody,  the  sheriff  should  not  commit 


STATE  V.  SHAW. 


65 


liim  to  jail  as  the  law  requires  under  such  general  continuing 
order,  without  waiting  for  an  express  order  in  each  particular 
case.  In  Be  Durant,  60  Vt.  176,  12  Atl.  650,  the  relator  was 
imprisoned  in  the  common  jail  upon  a  warrant  issued  by  the 
clerk  of  the  court  in  vacation,  and  it  was  contended  by  the  re- 
lator that  the  clerk  had  no  authority  for  the  issuing  of  such 
warrant.  This  brought  into  consideration  the  construction  of 
section  819,  R.  L.,  relative  to  the  duty  of  clerks,  which  pi-o- 
vides,  among  othen  things,  that  the  clerk  shall  "record  any 
other  proceedings  that  the  court  may  direct,  and  make  and  sign 
all  process  regularly  issued  from  either  of  the  courts  aforesaid 
under  the  direction  of  the  judges" ;  and  it  was  said  by  the  re- 
lator that  the  clerk  could  issue  no  process  except  as  expressly 
directed  by  the  judges.  The  court  said :  "This  is  against  the 
practical  construction  Y>'hich  this  statute  has  received.  Neither 
courts  nor  judges  have  been  in  the  habit  of  expressly  ordering 
ckrks  to  make,  sign,  and  deliver  to  prosecuting  officers  or  sher- 
iffs warrants  for  the  apprehension  of  persons  indicted ;  but  they 
have  been  issued  by  the  clerks  as  an  authorized  duty  in  regular 
course,  without  express  direction.  .  .  .  The  warrant  for 
the  arrest  is  the  process  regularly  issued  upon  the  indictment. 
The  clause  'under  the  direction  of  the  judges'  confers  upon 
tliem  the  right  to  make  orders,  the  right  of  supervision,  but  does 
not  require  an  express  order  to  invest  the  clerk  with  authority 
to  issue  a  warrant  for  the  arrest  in  due  course.  The  statute  re- 
quires clerks  to  make  and  keep  dockets  of  causes  pending,  etc., 
and  also  *to  record  any  other  proceedings  that  the  court  may 
direct.'  And  the  practice  is  for  clerks  to  make  a  docket  entry 
of  each  order  of  the  court  in  a  cause,  and  for  courts  to  so  direct ; 
but  I  apprehend  no  clerk's  docket  in  the  State  shows  an  entry 
of  an  order  to  issue  warrants  for  arrest  on  indictment  Tho 
practice  is  the  same  in  issuing  executions  in  civil  causes  and 
mitfimuses  in  criminal  causes.  They  are  issued  at  the  hand 
of  the  clerk,  and  usually,  when  regularly  issued,  without  ex- 
press order  or  docket  entry  of  such  order.  The  rendition  and 
entry  of  the  judgment  on  the  docket  has  always  been  regarded 
as  carrying  with  it  all  the  authority  which  is  required  from  the 
court  to  the  clerk  to  issue  such  regular  official  processes  as  the 
judgment  warrants."  In  the  same  manner,  the  surrender  of  a 
respondent  in  court  in  discharge  of  Lis  bail,  and  the  entry  of 

Vol.  XIII— 5 


m 


AMERICAN  CRIMINAL  REPORIS. 


I 


lii 


^4m 


the  order  to  that  eflfect  upon  the  docket  by  the  direction  of  the 
court,  may  be  regarded  as  carrying  with  them,  in  the  intend- 
ment of  law,  all  of  the  authority  which  is  required  from  the 
court  to  the  shcriflF  to  have  the  respondent  in  custody,  and,  if 
he  have  no  bail,  to  commit  him  to  jail  as  the  law  requires. 

Lord  Coke,  in  discussing  the  rights  and  personal  liberties 
guaranteed  by  the  provisions  of  Magna  Charta,  said  that 
process  of  law  was  two-fold,  namely,  by  the  King's  writ  or  by 
duo  proceeding,  and  warrant  either  in  deed  or  in  law  without 
writ ;  that,  if  treason  or  felony  be  done,  any  man  against  whom 
there  is  just  cause  of  suspicion  may  be  by  a  warrant  in  law 
iittaclud  and  imprisoned  by  the  law  of  the  land;  and  "that  a 
commitment  by  lawful  warrant,  either  in  deed  or  in  law,  is  ac- 
counted in  law  due  process  or  proceeding  in  law  and  by  the 
law  of  the  land,  as  well  as  by  process  by  lorce  of  the  King's 
writ."  2  Co.  Inst.  51-52.  By  examination  of  the  context,  th'.> 
meaning  of  the  words  "commitment  by  lawful  warrant,  either 
in  deed  or  in  law,"  is  unmistakable.  A  commitment  by  lawful 
warrant  in  deed  means  by  warrant  in  writing  and  under  seal, 
but  a  commitment  by  lawful  warrant  in  law  is  a  commitment 
by  force  of  law  or  by  authority  of  law  without  a  written  war- 
rant.   Such  is  the  construction  given  in  People  v.  Nevins,  supra. 

It  therefore  becomes  necessary  to  examine  the  statutory  pro- 
visions relied  upon  by  the  respondent,  to  see  whether  the  com- 
mon law,  in  the  regards  above  indicated,  has  been  aifected  there- 
by. It  is  provided  by  section  1702,  V.  S.,  that  an  officer  coni- 
jnitting  a  prisoner  shall  deliver  him  to  the  keeper  of  the  jail, 
within  the  same,  and  give  the  keeper  an  attested  copy  of  the 
process  on  which  the  commitment  is  made  with  his  return  there- 
on; by  section  18G2,  that,  when  a  prisoner  is  committed  to  jail 
on  a  criminal  process,  the  commitment  shall  be  in  the  manner 
])rescril)ed  for  commitments  on  civil  process;  and  by  section 
1704,  an  officer  who  does  not  within  six  hours  deliver  a  true 
copy  of  the  warrant  or  process  by  which  he  detains  a  prisoner, 
to  a  person  who  demands  such  copy  and  tenders  the  fees  there- 
for, shall  forfeit  to  such  prisoner  $200. 

It  is  contended  by  the  respondent's  counsel  that  these  sec- 
tions show  conclusively  that  a  prisoner  can  be  committed  to  jail 
only  upon  a  written  warrant  or  written  process ;  for,  otherwise, 
an  attested  copy  of  the  warrant  or  process  could  not  be  deliv- 


:;:  I 


STATE  V.  SHAW. 


67 


cred  to  the  jailer,  nor  a  true  copy  of  the  same  given  to  a  per- 
son who  (Jcmands  it,  as  provided  in  the  latter  section.  While 
it  is  true  that  an  attested  copy  of  the  warrant  or  process  cannot 
lie  delivered  to  the  jailer,  nor  a  true  copy  of  the  same  deliv- 
ered to  a  person  upon  demand,  unless  there  is  such  warrant  or 
pro('<  Hs,  is  it  true  that  all  authority  to  arrest  without  warrant, 
as  it  exists  at  common  law,  has  by  implication  been  taken  away 
by  these  provisions  of  the  statute  'i  At  common  law,  when  trea- 
son or  felony  is  committed,  it  is  lawful  for  any  man  who  has 
reasonable  cause  to  suspect  that  a  person  is  guilty  of  the  crime 
to  apprehend  him,  and  the  sheriff  or  constable  is  bound  by  law 
to  apprelicnd  the  felon  under  the  penalty  of  fine  and  imprison- 
ment. So  it  is  of  hue  and  cry.  Any  one  may  arrest  the  sus- 
pected person.  A  person  about  to  commit  the  crime  of  felony 
may  be  arrested  to  j)revent  the  crime ;  a  watchman  may  arrest 
a  nif.'ht  Avalker;  if  a  man  woundeth  another  dangerously,  he 
may  ho  arrested;  if  a  man  keep  the  company  of  a  notori(  us 
tliiet,  whereby  he  is  suspected,  it  is  good  cause  for  his  arrest; 
if  an  affray  be  made  to  the  breach  of  the  peace,  any  man  view- 
ing it  may  arrest  any  of  the  offenders;  and  in  all  such  in- 
stances, as  well  as  in  others  not  mentioned,  the  arrest  may  be 
made  without  warrant.  It  was  held  in  State  v.  Taylor,  supra, 
that  an  officer,  having  reasonable  cause  to  believe  that  a  per- 
son has  connnitted  a  felony  in  another  State,  may  arrest  him 
here  without  warrant,  and  that  the  same  right  to  arrest  exists 
in  sneh  case  as  exists  in  the  case  of  local  offenders.  Yet  to  give 
the  statutory  provisions  under  consideration  a  construction  in 
accer(hince  with  the  respondent's  contention  would  take  away 
1*11  authority  to  make  such  arrests  without  warrant;  for  the 
viiilit  to  commit  to  jail  follows  the  right  to  arrest,  vith  the  lim- 
itation, however,  that  the  officer  should,  as  soon  as  c'.  rcumstances 
will  reasonably  permit,  bring  his  prisoner  before  a  proper  mag- 
istrate for  a  preliminary  examination. 

It  is  said  in  2  Hawk.  P.  C.  p.  174,  §  3,  that  "it  seems  to  be 
agreed  by  all  the  old  books  that  wheresoever  a  constable  or  pri- 
vate person  may  justify  the  arresting  another  for  felony  or 
treason,  he  may  also  justify  the  sending  or  bringing  him  to  the 
common  jail,  and  that  every  private  person  has  as  much  au- 
thority in  cases  of  this  kind  as  a  sheriff  or  any  other  officer, 
and  may  justify  such  imprisonment  by  his  own  authority,  but 


I 


li 


.^1 


68 


AMERICAN  CRIMINAL  REPORIB. 


Mi 


not  by  the  command  of  another."  Sec,  also,  Ilale,  P.  0.  01 ; 
1  Chit.  Cr.  Law,  20-24;  Ikckwilh  v.  Pkilhy,  (5  Ham.  &  i\  03.'). 
In  Com.  V.  Deacon,  8  Serg.  &  11.  47,  the  respondent,  n  jailer, 
was  eharged  with  refusing  to  receive  into  his  custody  one  Can- 
fii-e,  who  was  arrested  hy  a  constable  for  conmiitting  n  breach 
of  the  peace  in  his  presence.  A  trial  was  had,  with  a  verdict 
of  "guilty,"  sul)ject  to  the  opinion  of  the  court  whether  the  of. 
fense  was  indictable.  The  court  said:  "Although  the  authorities 
are  not  decisive  on  this  subject,  they  go  a  considerable  length 
to  establish  the  rights  of  a  constal)le  to  deposit  n  prisoner  ar- 
rested without  warrant  in  the  common  jail  for  safe-keeping  till 
ho  can  be  carried  l)efore  a  magistrate.  Even  a  private  person, 
who  nuiy  have  apprehended  another  for  treason  or  felony,  may 
convey  him  to  the  jail  of  the  county,  altiiough  it  is  said  the 
safer  course  is  to  cause  him,  as  so»m  as  convenience  will  per- 
mit, to  he  brought  before  a  justice  of  the  peace ;  and  I  cannot 
f^ee  any  reason  vhy  a  private  person  should  not  have  the  sanu? 
authority  on  an  arrest  during  an  aiTray  which  has  taken  place 
in  his  presence.  A  constable  may  put  a  party  arrested  for  nii 
affray  in  the  stocks,  and,  in  case  of  any  offense  for  which  tlu^ 
])arty  suspected  may  Ix^  arrested,  may  convey  him  to  the  sheriff 
or  jailer  of  the  county,  although  in  this  case,  also,  and  in  every 
other  of  ihe  kind,  it  is  said  to  be  the  safest  and  best  course  to 
carry  the  offenders  before  a  magistrate  as  soon  as  circumstances 
will  permit." 

There  are  no  statutory  provisions  expressly  takinjiif  away  or 
modifying  the  connnon  law  in  tiiis  regard,  and  the  welfare  and 
security  of  the  public  demand  that  no  statute  should  be  given 
that  effect,  unless  such  was  the  manifest  intent  of  the  legisla- 
ture. Indeed,  it  is  an  established  principle  that  "The  rules  of 
the  common  law  are  not  to  be  changed  by  doubtful  implica- 
tion, nor  overturned  except  by  clear  and  unambitious  lan- 
guage." Dewetj  V.  St.  Albans  Trust  Co.  57  Vt.  332.  The  sec- 
tions in  question  may  well  be  construed  to  mean  that,  when- 
ever a  prisoner  is  committed  to  jail  npon  a  warrant  or  process, 
the  officer  committing  him  shall  deliver  to  the  keeper  of  the  jail 
an  attested  copy  thereof,  and  a  true  copy  of  the  same  to  a  per- 
son demanding  it,  but  that  they  in  nowise  abridge  the  common- 
law  right  of  arrest  and  commitment  without  warrant,  nor  the 


•1-1 


STATE  v.  SHAW.  69 

right  of  commitment  upon  an  order  of  a  court  of  rocord  and  of 
gciuTiil.  jurisdiction. 

It  is  also  said  by  the  respondent's  counsel  that,  when  a  re- 
spondent is  released  on  bail,  his  snbseqtient  commitment  upon 
dischnrge  of  bail  can  only  be  under  the  i)rovisions  of  sectiond 
202H,  2029,  V.  S.  It  will  be  seen,  upon  examination  of  iheso 
sections,  that  provision  is  made  therein  for  bi  11  who  wishes  to 
t-nrroiidcr  the  principal  in  discharge  of  his  recognizance  to  ap- 
])ly  for  a  warrant  to  apprehend  the  principal  and  C'linrnit  Iiitu 
to  jiiil,  and  that  thereupon  such  warrant,  directed  to  any  sh<rifT 
or  constuble  in  the  State,  shall  be  issued,  and  that  ^>n  commit- 
nient  of  the  principal  to  jail  thereon  the  bail  shall  be  dis- 
I'hnrged,  and  that  an  officer,  on  receipt  of  such  warrant  and 
tender  of  his  fees,  shall  apprehend  the  principal  and  commit 
him  to  jail  according  to  directions  therein,  and  leave  with  the 
jailer  a  copy  of  the  same,  with  his  return  thereon.  These  pro- 
visions are  applicable  only  when  the  bail  wishos  to  surrender 
his  principal,  and  for  that  purpose  procures  a  warrant  to  ap- 
])r('li('nd  him  and  commit  him  to  jail  in  discharge  of  bail.  They 
iiave  no  application  Avhen  the  principal  is  surrendered  in  court 
in  discharge  of  bail  without  such  warrant,  as  was  done  in  the 
deer-killing  case,  nor  when  the  principal  renders  himself  in 
pourt  for  that  purpose  and  procures  the  discharge  of  his  bail. 
It  is  snid  in  Tidd,  Prac.  (4th  Am.  Ed.)  282,  that  a  defendant, 
having  put  in  bail  may  render  himself,  or  be  taken  and  ren- 
dered in  discharge  of  bail,  at  any  time  pending  the  action ;  and 
the  right  of  a  respondent  to  render  himself  for  that  purpose  Avaa 
recognized  by  this  court  in  Re  Fitton,  G8  Vt.  297;  35  Atl.  319. 
Xeitlier  can  it  be  contended  that  a  bail  warrant  is  necessary 
Avhen,  in  the  discretion  of  the  court,  a  person  on  trial  for  felony 
is  ordered  into  custody,  as  he  may  be  under  the  provisions  of 
section  1981,  V.  S.  No  error,  therefore,  was  committed  in  dis- 
regarding the  second,  fourth,  fifth,  and  sixth  requests. 

The  respondent  excepted  to  that  part  of  the  charge  where  the 
court  said :  ''But  you  will  remember  that  if  you  find  the  trans- 
action to  have  been  as  stated  by  Sheriff  Spafford,  and  that  the 
respondent  intentionally  fired  at  Hoffman,  and  he  was  acting 
with  the  sheriff,  a  part  of  the  instructions  to  be  hereafter  given 
will  have  no  bearing  on  the  case." 

Sheriff  Spafford  testified,  among  other  things,  that  he  had 


li  nUvtikJ 


ri 


,  '"11 


\$fM 


t  i 


mm 


70 


AMERICAN  CRIMINAL  REPORTS. 


':  !/•! 


M  U 


previously  seen  the  respondent  and  his  father,  had  been  intro- 
duced to  them,  had  told  them  that  he  was  the  sheritf  of  tin- 
county,  and  that  they  were  turned  over  to  him  as  such  by  his 
deputy,  Lee  Cady,  who  bad  them  under  arrest  in  the  street  at 
Woodstock,  and  that  he  then  committed  them  to  jail,  where  ho 
afterwards  saw  the  respondent  and  talked  with  him  on  severni 
different  occasions ;  that,  when  he  and  Hoffman  came  upon  tlio 
two  Shaws  they  were  four  or  five  feet  apart ;  that  he  (Spafford) 
hailed  them  and  demanded  their  surrender,  whereupon  the 
Shaws  seized  their  rifles,  and  Dustin  aimed  at  Spafford  and 
the  respondent  at  Hoffman,  who  stood  on  the  right  of  Spafford 
and  a  little  back;  that  then  Spafford  said  to  them,  "Hold  on, 
boys,  we  are  not  going  to  have  any  shooting  here,"  to  which 
Dustin  replied,  "Xo,  hold  on!  We  don't  want  any  shooting  I" 
and  dropped  the  muzzle  of  his  gun,  but  that  the  respondent 
continued  to  hold  his  aimed  at  Hoffman;  that  Hoffman  said, 
"Drop  that  gun,  Frank,  or  I  Avill  bore  you!"  and  repeated  it 
"Drop  that  gun,  I  tell  you!"  whereupon  immediately  Frank 
fired  and  Hoffman  threw  his  arms  over  his  head,  fell  over  back- 
ward exclaiming,  "Oh,  Go'd !  he  has  killed  me  I"  and  that  then 
shots  were  exchanged  between  Spafford  and  the  respondent,  auvl 
the  latter  ran  into  the  woods  and  disappeared  from  view. 

This  evidence  tended  to  show  that  the  respondent  and  his 
father  knew  Sheriff  Spafford,  both  personally  and  officially, 
and,  by  his  demanding  their  surrender,  the  respondent  knew  the 
sheriff's  purpose  in  being  there  was  to  effect  their  arrest ;  that 
the  respondent  saw  Hoffman  in  company  with  the  sheriff,  saw 
their  concerted  movements,  heard  Hoffman's  demands  to  droj) 
the  gun,  and  knew  that  he  was  acting  with  the  sheriff.  There- 
fore further  notice  of  Hoffman's  character  and  intentions  was 
not  required;  for,  notwithstanding  the  fact  that  neither  Spaf- 
ford nor  Hoffman  had  by  express  words  stated  to  the  respond- 
ent and  his  father  that  Hoffman  was  there  with  the  sheriff'  to, 
assist  him,  the  surroundings  and  attending  circumstances  were 
such  as  to  make  it  plain  to  them  that  he  was  there  for  that  jiui- 
pose,  thus  making  it  unnecessary,  for  notice  thereof  to  be  ex- 
pressly given.  Rex  v.  Davis,  7  Car.  &  P.  785 ;  Rex  v.  Howarlh, 
1  Moody,  Cr.  Cas.  207;  Rex  v.  Woolmer,  Id.  334;  Rex  v. 
Pajir.c,  Id.  378.  And  Hoffman  was  entitled  to  the  same  pro- 
tection under  the  law  as  the  sheriff  himself.    Reg.  v.  Porter, 


75. 


STATE  V.  SHAW. 


71 


12  Cox,  Cr.  Cas.  444.  This  evidence  also  tended  to  show  that 
the  respondent,  knowing  Spaiford  and  Hoffman  to  be  there  for 
the  purpose  of  effecting  his  authorized  arrest,  intentionally  fired 
at  Hoffman;  and  it  discloses  nothing  improperly  done  by  tho 
clicriff  or  Hoffman  in  pursuing  that  purpose  before  the  homi- 
cide. In  these  circumstances,  if  the  jury  found  this  evidence 
to  be  true,  the  killing  of  Hoffman  by  the  respondent  constituted 
llie  crime  of  murder,  regardless  of  the  question  of  malice;  for 
the  law  docs  not  allow  that  a  lawful  arrest  is  a  provocation  to" 
jjassion  and  heat  (Slate  v.  Taylor,  supra;  Reg.  v.  Porter,  su- 
pra; State  V.  Oliver,  2  Houst.  585),  and  the  question  of  self- 
(Iifcnsc  was  not  applicable.  Therefore,  the  instructions  subse- 
([uciitly  given  relative  thereto  would  have  no  bearing  on  the 
case,  and  the  part  of  the  charge  excepted  to  was  without  error. 

Exception  v/as  also  taken  to  that  part  of  the  charge  instruct- 
iujT  the  iury  that  "if  resistance  to  authorized  arrest,  which  is 
being  properly  made,  results  in  the  death  of  the  officer,  the 
oriine  will  be  murder,  regardless  of  the  question  of  malice." 
But  it  has  been  seen,  in  discussing  the  exception  last  consid- 
ered, that  this  was  proper.  No  other  exceptions  taken  to  the 
charge  are  relied  on  in  the  respondent's  brief. 

When  the  case  was  submitted  to  the  jnvy,  the  plan  made  by 
the  witness' Batchelder,  and  three  photographs,  exhibits  in  the 
case,  were  allowed  to  go  to  the  jury  room  for  the  consideration 
of  the  jury,  to  which  exception  was  taken.  It  was  within  tlic 
discretion  of  the  court  to  allow  this  to  be  done,  and  the  excep- 
tion is  unavailing.    In  re  Barney's  Will,  71  Vt.  217,  44  Atl 


This  disposes  of  all  the  exceptions  upon  which  the  respond- 
ent relies  in  his  brief,  none  of  which  are  sustained. 

It  is  therefore  considered  that  judgment  ought  to  be,  and  it 
is,  rendered  upon  the  verdict.  Let  sentence  be  imposed  and 
execution  thereof  done. 


'!'  '/, 


U 


,       1 


72 


AMERICAN  CRIMINAL  REPORTS. 


Petkie  v.  Cartwrioht. 
114  Ky.  103;  24  Ky.  L.  R.  954;  59  L.  R.  A.  720;  70  S.  W.  Rep.  297. 
Decided  November  12,  1902. 

AuuEST  wiTiioLT  WARRANT:  Distinction  bettceen  felony  and  misde- 
meanor—Liability of  officer  in  damages  for  killing  in  making  an 
arrest — Common  and  statutory  law — Evidence  Res  gesta. 

1.  The  plaintiff  Mary  Petrle  brought  this  suit  to  recover  damages  for 

the  shooting  of  her  husband  Joe  Petrle  by  the  defendant  who  was 
City  Marshal  of  Elkton,  Ky.  She  and  her  sister  were  returning 
home  when  they  were  grossly  Insulted  by  two  drunken  -ie:i. 
Meeting  her  husband  he  followed  the  men  and  demanded  an  ex- 
planation. A  fight  immediately  resulted  in  which  he  knocked 
over  one  of  the  men  but  upon  the  other  repeatedly  stabbing  at 
him  and  his  clothes  being  cut  and  being  warned  to  flee  he  ran 
away.  The  defendant  being  near  called  upon  him.  to  halt  but  he, 
not  heeding  the  command,  defendant  fired  after  him,  the  second 
shot  killing  him. 

2.  It  was  held  that  it  did  not  appear  that  Petrle  was  fleeing  to  escape 

arrest,  but  rather  to  avoid  imminent  danger  to  himself.  Also 
that  it  did  not  appear  that  there  was  ground  for  believing  that 
he  had  been  guilty  of  committing  a  felony. 

3.  That  the  rule  that  an  oflicer  may  arrest  without  a  warrant,  and 

use  such  force  as  is  necessary,  even  to  killing  the  felon,  where 
he  has  reasonable  grounds  to  believe  the  party  guilty  of  a  felony, 
does  not  apply  to  misdemeanors.  That  human  life  is  too  sacred 
to  allow  it  to  be  taken  in  an  attempt  to  apprehend  a  person  sup- 
pcscl  to  be  guilty  merely  of  a  misdemeanor. 

4.  Tiuit  as  the  affair  occurred  near  Petrie's  home,  and  as  the  shot 

^vas  fired  before  the  women  reached  his  home,  that  what  occurred 
Letweca  Pctiie  and  the  women,  and  between  the  women  and  the 
drunken  men,  and  the  attendant  circumstances  constituted  but 
one  transaction  and  was  competent  as  res  gesta,  and  should  have 
been  admitted  in  evidence. 

Appeal  from  Circuit  Court  Todd  County. 
Suit  by  Mary  Potrie  against  S.  11.  (Jartwright. 
Judgintnt  for  defendant  and  olaintiff  appeals, 
lievcrsed. 

Pctrie  S  Standard  for  the  appellant. 
C.  A.  Denny  for  the  appellee. 


■1 
.1. 

4 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


These  c 

Croueli. 

does  not 

other  in 

rccollcet 

tlie  lieiKf 

no  otheii 

under 

(leatli  0 

that  lie  I 

onnniiittl 

ininiedit 

him  U]i<| 

not  ovej 

eseapiiii 

that  lie 

feldiiy 

<it'  ]nwi 

court  ill 

faith,  ai 


PETRIE  V.  CARTWRIGHT. 


73 


IIoBsox,  J.  The  appellant,  Mary  Petrie,  was  going  to  her 
home  in  Elkton,  Ky.,  after  night,  in  company  with  her  hus- 
band's sisler,  Mary  Belle.  They  were  followed  by  two  men, 
named  I31ye  and  Crouch;  the  latter  proposing  sexual  inter- 
course, and  making  an  exposure  of  his  person.  They  hurried 
on,  and  met  Joe  Petrie,  the  husband  of  Mary.  She  told  him 
of  the  conduct  of  the  men,  and  he  immediately  went  back  up 
the  street  in  the  direction  of  them.  When  he  overtook  them, 
he  ask(d  Crouch  what  he  had  insulted  his  wife  for.  Crouch 
said,  "Dahni  your  wife,  and  you,  too."  Petrie  then  struck  him. 
A  sciitHe  followed,  and  Croiich  fell.  Crouch  and  lilye  wer3 
white  men.  Petrie  was  a  negro.  The  difficulty  came  up  just 
in  front  of  a  billiard  saloon.  Blye  was  cutting  at  Petrie  with 
his  knife.  Some  one  called  out  to  Petrie  to  run,  which  he  did. 
Apptlke,  Cartwright,  who  was  the  city  marshal,  was  in  sight 
a  few  yards  off,  and,  seeing  Crouch  fall,  as  Petrie  ran  past 
caHed  to  him  to  halt,  and,  when  he  did  not  stop,  fired  his  pistol 
in  tli(  ground.  He  then  fired  a  second  time,  taking  aim  at 
Petri*',  and  killing  him.  Petrie's  clothes  were  cut  behind.  His 
clothing  was  cut  through  and  through,  and  his  skin  scraped. 
Tiiese  cuts  were  made  by  Blye  while  he  was  scuffling  with 
Crouch.  Although  the  officer  called  to  Petrie  twice  to  stoj),  he 
does  not  appear  to  have  heard  him.  Neither  recognized  the 
other  in  tlie  dark.  Crouch  was  very  drunk,  so  that  he  had  no 
rccoll(  ction  of  what  occurred.  He  was  bruised  on  the  back  of 
the  iK^ad  by  the  blow  or  fall,  but,  except  a  knot  tliere,  received 
no  otiior  injury.  The  wife,  Mary  Petrie,  then  filed  this  action 
under  section  4  of  the  Kentucky  Statutes  to  recover  for  the 
death  of  her  husband.  The  defendant  pleaded,  in  sul)stanee, 
tliat  lie  was  acting  in  his  official  capacity;  that  the  d(>ceased 
cnnimitted  an  offense  in  his  presence  by  striking  (^rouch,  and 
imnieiliately  turned  to  flee;  that  he  tried  to  stop  him,  and  place 
];im  nniler  arrest,  and  pursued  him  for  that  purpose,  but  could 
not  overtake  him,  and  was  forced  to  shoot  hini  to  prevent  his 
escaping;  that  he  used  no  more  force  than  was  necessary,  and 
that  he  l)elieved,  and  had  reasonable  grounds  to  believe,  that  a 
felfiny  liad  been  committed ;  and  that  he  had  no  other  means 
(if  preventing  the  escape  of  the  felon  but  to  shoot  him.  The 
cinu't  instructed  the  jury  that,  if  the  officer  believed  in  good 
faith,  and  had  reasonable  grounds  to  believe,  that  Petrie  had 


74 


AMERICAN  CRIMINAL  REPORTS. 


i 


committed  a  felony,  and,  after  using  all  other  available  means 
to  arrest  him,  lired  the  fatal  shot  solely  in  order  to  procure  his 
arrest,  and  in  doing  so  used  no  more  force  than  appeared  to 
him  to  be  reasonably  necessary  in  order  to  make  the  arrest, 
they  should  find  'for  the  defendant.  The  jury  found  a  verdict, 
for  the  defendant  under  these  instructions,  and  the  plaintiff  ap- 
prals. 

We  think  it  evident  from  the  proof  that  Petrie's  flight  was 
not  to  avoid  arrest,  but  only  to  escape  what  he  conceived  to  ki 
an  inniending  danger.  We  think  it  also  clear  that  the  fall  of 
Blye  was  due  rather  to  his  being  very  drunk  than  to  any  other 
cause,  for  he  seems  to  have  fallen  in  the  scuffle,  and  not  when 
he  was  struck.  The  jury  were  warranted  in  concluding  from 
all  the  evidence  that  Petrie  had  in  fact  committed  no  felony. 
The  (jucstion,  therefore,  presented,  is,  may  a  peace  officer,  to 
make  an  arrest  upon  a  suspicion  of  felony,  shoot  a  person  who 
does  not  stop  when  called  upon  to  halt?  The  statute  provides: 
"A  peace  officer  may  make  an  arrest  .  .  .  without  a  war- 
rant wlien  a  public  offense  is  committed  in  his  presence,  (tr 
when  he  has  r(>asonable  grounds  for  l)elieving  that  the  person 
arrested  has  committed  a  felony."  "A  private  person  may 
make  an  arrest  when  he  has  reasonable  grounds  for  IxdieviiiU! 
that  the  person  arrested  has  committed  a  felony."  "Xo  un- 
necessary force  or  violence  shall  be  used  in  making  the  arrest." 
Cr.  Code  Prac.  §§  30,  37,  43.  In  Dilger  v.  Com.,  88  Ky.  r>i)0, 
11  S.  W.  Gr)l,  the  court,  after  referring  to  these  statutory  i)ro- 
visions,  speaking  of  the  officer's  authority,  said:  "Our  statut" 
is  silent,  save  as  above  cited,  as  to  the  force  he  may  use.  Wo 
must,  therefore,  turn  to  the  common  law  for  guidance.  By  it, 
in  a  case  of  felony,  he  may  use  such  force  as  is  necessary  to 
capture  the  felon,  even  to  killing  him  when  in  flight.  Wlierc 
it  is  a  misdemeanor,  however,  the  rule  is  otherwise.  It  is  his 
duty  to  make  the  arrest,  but,  unless  the  offender  is  resisting  to 
such  an  extent  as  to  place  the  officer  in  danger  of  loss  of  life  or 
great  bodily  liarm,  the  latter  cannot  kill  him.  lie  can  oidy 
do  so,  or  inflict  great  bodily  harm,  when,  by  reason  of  the  re- 
sistance, he  is  placed  in  the  like  danger.  If  he  meet  with  re- 
sistance, he  may  oppose  sufficient  force  to  overcome  it,  even  to 
the  taking  of  life."  In  the  previous  case  of  Head  v.  Martin, 
85  Ky.  481,  3  S.  W.  G22,  the  court  announced  the  same  rule. 


l-i 


be]u'V( 

feiisc 

arrest 

"And 

actna 

be  tiik 

pie, 

suspici 

(scape, 

and  th 

pubstii 

37  Pa 

men  r 

ooininf 

He  th( 

sonal)] 

mere!} 


iijt; 


PETRIE  V.  CARTWRIGHT. 


75 


£ 


Iliere  it  is  also  said :  "Human  life  is  too  sacred  to  admit  of  a 
jore  severe  rule.  Officers  of  the  law  are  properly  clothed  with 
tS  sanctity.  They  represent  its  majesty,  and  must  be  properly 
protected.  But  to  permit  the  life  of  one  charged  with  a  mere 
misdciueanor  to  be  taken  when  fleeing  from  the  officer  would, 
aside  from  its  inhumanity,  be  productive  of  more  abuse  than 
o'ood.  The  law  need  not  go  unenforced.  The  officer  can  sum- 
mon his  posse,  and  take  the  offender."  The  authorities  are 
clear  tliat  where  the  offense  is  only  a  misdemeanor  the  officer 
cannot,  to  prevent  his  escape,  take  the  life  of  the  offender  when 
in  iiight.  Head  v.  Martin,  21  Am.  &  Eng.  Enc.  Law,  204; 
Thuiiias  V.  Kinkead  (Ark.)  18  S.  W.  854,  15  L.  R.  A.  558,  21) 
Am.  St.  Kep.  68;  note  to  Hawkins  v.  Com.,  61  Am  Dec.  162. 
They  are  also  uniform' that  an  officer  may  lawfully  arrest  one 
who,  as  he  l)elicvcs,  and  has  reasonable  grounds  to  believe,  has 
committed  a  felony.  Doerincfv.  State,  19  Am.  Rep.  601).  And 
it  is  laid  down  that  in  such  case  he  must  proceed  very  cautious- 
ly where  the  person  sought  to  Ixi  arrested  flees,  as  flight  is  dif- 
ferent from  resistance.  Note  to  Hawkins  v.  Com.,  61  Am. 
Dt'c.  162.  But  tliese  authorities  do  not  determine  the  question 
wlietlier  an  officer  acting  without  warrant  is  excusable  for  kill- 
ing sneh  a  person  in  flight  when  he  had  reasonable  grounds  to 
believe  a  felony  had  l)een  committed,  although  in  fact  the  of- 
fense was  only  a  misdemeanor.  The  common-law  rule  as  to  the 
arrest  of  a  felon  is  thus  stated  in  2  Bish.  Cr.  Law,  §  647: 
"And  in  eases  of  felony  the  killing  is  justifiable  because  an 
actual  arrest  is  made,  if  in  no  other  way  the  escaping  felon  can 
be  taken."  See,  also,  4  Bl.  Comm.  292.  In  Conraddy  v.  Peo- 
ple, 5  Parkf'r,  234,  an  officer,  who  had  arrested  a  person  on 
susi)icion  of  felony,  shot  and  killed  him  when  he  attempted  to 
f  sc'a])e.  The  deceased  was  in  fact  guilty  of  only  a  misdemeanor, 
and  the  officer  was  held  guilty  of  manslaughter.  To  same  effect, 
substantially,  is  the  case  of  People  v.  Kilvington,  104  Cal.  86, 
37  Pac.  799,  43  Am.  St.  Rep.  73.  There  an  officer  saw  two 
men  running,  the  hinder  man  crying  out,  "Stop  thief!"  He 
commanded  the  front  man  to  stop.  The  order  was  disobeyed. 
He  then  shot  and  killed  him.  It  was  held  that,  as  he  had  rea- 
sonable cause  to  believe  a  felony  had  been  committed,  and  shot 
merely  to  intimidate  the  man  sought  to  be  arrested,  and  not 


m 


76 


AMERICAN  CRIMINAL  REPORTS. 


m 


h! 


i'i  .Hi 


with  the  purpose  of  hitting  him,  it  was  a  question  for  the  jury 
Avhethcr  he  was  guilty  of  criminal  negligence. 

We  have  been  unable  to  find  any  common-law  authority  justi- 
fying an  officer  in  killing  a  person  sought  to  be  arrested,  wiio 
fied  from  him,  where  the  officer  acted  upon  suspicion,  and  no 
felony  had  in  fact  been  committed.  The  common-law  rule  al- 
lowing an  officer  to  kill  a  felon  in  order  to  arrest  him  rests  "ipon 
the  idea  that  felons  ought  not  to  be  at  large,  and  that  the  life 
of  a  felon  has  been  forfeited ;  for  felonies  at  common  law  were 
punishable  with  death.  But  where  no  felony  has  been  com- 
mitted the  reason  of  the  rule  does  not  apply,  and  it  seems  to 
us  that  the  sacrednrss  of  human  life  and  the  danger  of  abuso 
do  not  permit  an  extension  of  the  common-law  rule  to  ca^  i  of 
suspected  felonies.  To  do  so  Avould  be  to  bring  many  cases  of 
misdemeanor  within  the  rule,  for  in  a  large  per  cent,  of  these- 
cases  the  officer  could  show  that  he  had  reasons  to  suspect  tlio 
commission  of  a  felony,  and  it  would  be  left  entirely  with  him 
to  say  whether  he  was  proceeding  against  the  defendant  for  a 
misdemeanor  or  for  a  felony.  The  notion  that  a  peace  officer 
may  in  all  cases  shoot  one  who  flees  from  him  when  about  to 
be  arrested  is  unfounded.  Officers  have  no  such  power,  exco])t 
in  cases  of  felony,  and  there  as  a  last  resort,  after  all  other 
means  have  failed.  It  is  never  allowed  where  the  offense  is 
onL  a  misdemeanor;  and  where  there  is  only  a  suspicion  of 
felony  the  officer  is  not  warranted  in  treating  the  fugitive  m  n 
felon.  If  he  does  this,  1  e  does  so  at  his  peril,  and  is  liable  if 
it  turns  out  that  he  is  mistaken.  He  may  lawfully  arrest  ur.-.;:; 
a  suspicion  of  felony,  but  he  is  only  warranted  in  using  mwh 
force  in  making  the  arrest  as  is  allowable  in  other  cases  no; 
felonious,  unless  the  offense  was  in  fact  a  felony.  "In  all  cases, 
whether  civil  or  criminal,  where  persons  having  authority  to  ar- 
rest or  imprison,  and  using  the  proper  means  for  that  purpose, 
are  resisted  in  so  doing,  they  may  repel  force  with  force,  and 
need  not  give  back;  and,  if  the  party  making  resistance  is  un- 
avoidably killed  in  the  struggle,  this  homicide  is  justifiable." 
1  Russ.  Crimes,  605.  In  Lindle  v.  Com.,  Ill  Ky.  800,  01: 
S.  W.  986,  this  rule  was  followed  where  an  officer  attempted  to 
arrest  a  person  upon  reasonable  grounds  to  believe  he  had  com- 
mitted a  felony,  and  was  forcibly  resisted  by  him.  But  where 
a  supposed  offender  simply  fails  to  stop  when  ordered  to  do  so, 


'# 


PENNY  V.  STATE. 


77 


a  different  principle  applies.  Althoiigh  the  rule  is  otlierwi?e 
laid  down  in  State  v.  Evans,  161  :Mo.  95,  61  S.  W.  590,  84 
Am.  St.  Kop.  669,  the  question  was  not  before  the  court  in  that 
case;  and,  as  was  well  said  in  Thomas  v.  Kinkead  (Ark.)  18  S. 
W.  854,  15  L.  R.  A.  558,  29  Am.  St.  Rep.  70,  the  rule  as  thus 
stated  is  not  sustained  by  the  common-law  authorities. 

The  court  should  have  allowed  the  evidence  as  to  what  took 
place  between  Blye  and  Crouch  and  the  two  women ;  also  as  to 
what  took  place  between  them  and  Joe  Petrie;  as  they  were 
only  a  short  distance  from  home  when  the  transaction  occurred, 
and  before  they  got  home  they  heard  the  shots.  The  whole 
thing  was  so  closely  connected  that  it  should  all  be  regarded  as 
one  transaction,  and  the  evidence  referred  to  was  competent  as 
res  gestae. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 


-'•v. 


"--sii 


Penny  v.  State. 

114  Ga.  77—39  S.  E.  Rep.  871. 

Decided  November  6.  1901. 

AssAn.T:    Threats,  abuse  and  display  of  force,  but  no  attempt  at  vio- 
lence— Approved   instructions — Guilty  of  other  offense  than   as- 

SClllt. 

Not  only  should  the  charge  requested  have  been  given,  but  a  new 
trial  should  have  been  granted  because  the  verdict  was  w'thout 
evidence  to  support  It. 
(Syllabus  by  the  Court.) 
Additional  Syllabus:    (J.  F.  G.) 

1.  Threats,  insolent  language  and  display  of  force,  but  no  attempt  at 

violence,  do  not  constitute  an  assault. 

2.  The  fact  that  the  accused  was  guilty  of  a  violation  of  one  penal 

statute,  does  not  justify  his  conviction  of  another. 

3.  See  approved  instruction  in  the  opinion. 

Error  to  City  Court  of  Floyd  County ;  Hon.  John  II.  Reece, 
Judge. 
Burt  Penny,  convicted  of  assault,  brings  error.    Reversed. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


'I  ('■. . 


'  ,    ' 


I'. .  i 


■li 


.1    ^  1' 


^.P 


U' 


78 


AMERICAN  CRIMINAL  REPORTS. 


John  W.  Bale,  for  the  plaintiff  in  error. 

Moses  Wright,  Solicitor-General,  for  the  State. 

Little,  J.  Burt  Penny  was  indicted  for  an  assault,  and  it 
was  charged  against  him  that  he'  did  attempt  to  commit  a  vio- 
lent injury  upon  one  J.  C.  Smalley.  On  the  trial  of  the  casa 
tlic  following  facts  were  shown :  On  a  certain  night  in  Febru- 
ary, 1901,  between  7  and  8  o'clock,  three  men  drove  up  in  a 
buggy  and  stopped  in  front  of  Smallcy's  house.  One  of  those 
(Penny)  got  out  of  the  buggy,  went  to  the  house,  and  knockcl 
at  the  door.  He  replied  to  an  inquiry  made  by  one  of  Smalley's 
daughters  at  the  door,  and  who  asked  him  what  he  wanted: 
"I  want  a  drink  of  water,  by  God !"  He  was  then  d.'rected  to 
go  away.  About  that  time  Smalley  came  to  the  door  and  told 
Penny  to  go  away,  and,  on  his  failure  to  do  so,  Smalley  pushed 
Penny  off  the  steps  and  out  of  the  gate.  Penny,  after  getting 
outside  the  gate,  was  discovered  by  a  witness  to  have  a  rock  in 
each  hand,  and  he  (Penny)  then  made  the  remark:  "You  girls 
get  out  of  the  way.  I  don't  want  to  hurt  you;"  adding  that 
the  old  man  was  the  one  he  was  after,  and  using  in  connection 
with  his  reference  to  Smalley  very  indecent  and  reprehensil)le 
language.  Penny  did  not  throw  the  rocks,  nor  did  he  make 
any  attempt  to  throw  them.  No  one  saw  him  when  he  picked 
them  up.  The  jury,  under  the  charge  of  the  court,  returned  a 
verdict  of  guilty,  and  the  defendant  made  a  motion  for  a  new 
trial  on  the  ground  that  the  verdict  was  contrary  to  law,  ami 
without  evidence  to  support  it.  The  motion  being  overrulcil, 
the  defendant  excepted. 

An  amendment  to  the  motion  alleges  further  error  in  the  re- 
fusal of  the  judge  to  direct  a  verdict  of  not  guilty,  and  in  re- 
fusing a  written  request  to  charge  the  following: 

"A  mere  preparation  to  commit  a  violent  injury  upon  the 
person  of  another,  or  a  mere  threat  to  do  so,  unaccompanied  by 
physical  effort  to  do  so,  will  not  justify  a  conviction  for  an  as- 
sault. Mere  words  or  threats,  unaccompanied  by  some  physical 
effort  to  commit  a  violent  injury  upon  the  person  of  another, 
will  not  justify  a  conviction  for  an  assault." 

While  we  are  not  prepared  to  say  that  a  refusal  to  direct  a 
verdict  in  a  criminal  ease  is  under  any  circumstances  errone- 
ous, we  are  clearly  of  the  opinion  that  the  trial  judge  erred  in 
refusing  to  give  in  charge  to  the  jury  the  principle  of  law  re- 


PENNY  V.  STATE. 


79 


qiipsted ;  it  being  both  sound  and  applicable  to  the  facts  of  the 

ease. 

We  are  further  of  opinion  that  he  erred  in  overniling  the 
motion  for  a  new  trial  on  the  ground  that  the  verdict  was  with- 
out evidence  to  support  it.  There  was  no  evidence  of  any  kind 
or  character  that  the  defendant  attempted  to  commit  a  violent 
injury  on  the  person  of  Smalley.  The  defendant's  conduct  on 
that  occasion,  if  the  evidence  be  true,  merited  punishment,  and 
afforded  sufficient  ground  for  his  prosecution  on  another  and 
distinct  criminal  charge;  but  we  cannot,  because  of  that,  sanc- 
tion this  verdict.  The  evidence  does  not  show  that  Penny 
struck  Smalley,  or  that  he  attempted  to  do  so.  While  he  had 
rocks  in  his  hands,  he  did  not  throw  nor  otherwise  attempt  to 
use  them  on  the  person  of  Smalley.  Whatever  else  the  defend- 
ant may  have  been  guilty  of  under  the  evidence,  certainly  no 
portion  of  it  shoAvs  that  he  was  guilty  of  an  assault.  See 
Brown  v.  State,  95  Ga.  481,  20  S.  E.  495.  A  new  trial  should 
have  been  granted. 

Judgment  reversed.     AH' the  justices  concurring. 

NoTKS  (by  J.  F.  G.). — Essential  elements  of  Assault,  and  of  Assault 
and  Battery. — To  clearly  comprehend  these  elements,  reference  should 
be  made  to  both  the  common  law  and  the  statutes  of  the  various  locali- 
ties of  the  offenses.  Our  review  will  be  limited  to  the  common  law,  as 
anncunced  In  standard  authorities,  together  with  a  few  American 
cases,  leaving  the  reader  to  consult  the  local  statutes  as  occasion  may 
require.  The  three  following  cases  should  be  read  in  connection  with 
the  foregoing  opinion. 

For  authorities  aside  from  text  books,  see: 

1  Am.  &  Eng.  Encyc.  of  Law,  1  Ed.  778-821. 

2  Am.  &  Eng.  Encyc.  of  Law.  2  Ed.  952-1003. 
4  Century  Digest,  863-1108. 

3  Cyc,  1014-1110. 

Semi-annual,  volumes  of  American  Digests. 
Index  to  10  American  Criminal  Reports. 
Table  of  Topics  in  the  present  voluuis. 

Assault — Assault  and  battery — Blackstone's  definitions. — Blackstone 
defines  an  assault,  as:  "An  attempt  or  offer  to  beat  another,  without 
touching  him;  as  if  one  lifts  up  his  cane,  or  his  fist,  in  a  threatening 
manner,  at  another,  or  strikes  at  him.  but  misses  him."  He  defines 
a  battery  as:  "The  unlawful  beating  of  another,"  and  says:  "The 
least  touching  of  another's  person  willfully,  or  in  anger,  is  a  battery; 
for  the  law  cannot  draw  the  line  between  different  degrees  of  violence, 
and  therefore  totally  prohibits  the  first  and  lower  stage  of  it;  every 


!);*  : 


\VS: 


80 


AMERICAN  CRIMINAL  REPORTS. 


man's  perscn  being -Bacred,  and  no  other  having  a  right  to  meddle  with 
It  in  the  slightest  manner."— 3  Blackstone's  Commentaries  120. 

The  above  definitions  were  given  by  Blackstone,  In  treating  of  civil 
remedies;  but  in  volume  4  on  page  216,  he  cites  them  as  equally  ap- 
plicable to  criminal  law. 

What  is  an  assault— Every  battery  includes  an  assault— Views  of 
Serjeant  Ilaukins.—ln  his  Pleas  of  the  Crown  Serjeant  Hawkins  says: 

"It  seems  that  an  assault  is  an  attempt,  or  offer,  with  force  and  vio- 
lence, to  do  a  corporal  hurt  to  another;  as  by  striking  at  him  with  or 
without  a  weapon;  or  presenting  a  gun  at  him  at  such  a  distance  to 
which  the  gun  will  carry;  or  pointing  a  pitch-fork  at  him,  standins 
within  the  reach  of  It;  or  by  holding  up  one's  fist  at  him;  or  by  any 
other  such-like  act  done  In  an  angry  threatening  manner;  and  fron; 
hence  it  clearly  follows,  that  one  charged  with  assault  and  battery, 
may  te  found  guilty  of  the  former,  and  yet  acquitted  of  the  latter. 
But  every  battery  Includes  an  assault;  therefore  on  an  Indictment  of 
assault  and  battery.  In  which  the  assault  Is  111  laid,  If  the  defendant 
be  found  guilty  of  the  battery.  It  Is  sufficient  Notwithstanding  the 
many  ancient  opinions  to  the  contrary,  it  seems  agreed  at  this  day,  that 
no  words  whatsoever  can  amount  to  an  assault." — (1  Hawkln's  Pleas 
of  the  Crown,  8  Edition,  110.) 

What  is  a  6a«ery.— Following  the  above  quotation,  Mr.  Hawkins 

says: 

"It  seems  that  any  injury  whatsoever,  be  It  never  so  small,  being 
actually  done  to  the  person  of  a  man  in  an  angry,  revengeful,  rude,  or 
insolent  manner,  as  by  spitting  In  his  face,  or  any  way  touching  him 
In  anger,  or  violently  jostling  him  out  of  the  way,  are  batteries  in  the 
eye  of  the  law.  But  it  is  said  to  be  no  battery  to  lay  one's  hand  gently 
on  another  whom  an  officer  has  a  warrant  to  arrest,  and  to  tell  the 
officer  that  this  is  the  man  he  wants."— (1  Hawkins  P.  C,  110.) 

What  is  an  assault— Definition,  etc.,  by  Sir  Williata  Russell. — In  1 
Russell  on  Crimes,  pages  750-751,  the  author  saj's: 

"An  assault  is  an  attempt  or  offer,  with  force  and  violence,  to  do 
a  corporal  hurt  to  another;  as  by  striking  at  another  with  a  stick  or 
other  weapon,  or  without  a  weapon,  though  the  party  striking  misses 
his  aim.  So  drawing  a  sword  or  bayonet,  or  even  holding  up  a  fist  in 
a  menacing  manner,  throwing  a  bottle  or  glass  with  Intent  to  wound 
or  strike,  presenting  a  gun  at  a  person  who  Is  within  the  distance 
to  which  the  gun  will  carry,  pointing  a  pitchfork  at  a  person  who  is 
within  reach,  or  any  other  similar  act,  accompanied  with  such  cir- 
cumstances as  denote  at  the  time  an  Intention,  coupled  with  a  present 
ability,  of  using  actual  violence  against  the  person  of  another,  will 
amount  to  an  assault. 

"But  It  appears  to  be  now  quite  settled,  though  many  ancient  opin- 
ions were  to  the  contrary,  that  no  words  whatsoever,  be  they  ever  so 
provoking  can  amount  to  an  assault.  And  the  words  used  at  the  time 
may  so  explain  the  Intention  of  the  party  as  to  qualify  his  act,  and 
prevent  it  from  being  deemed  an  assault:  as  where  A.  laid  his  hand 
upon  b's  sword,  and  said,  'If  it  were  not  the  assize  time,  I  would  not 


PENNY  V.  STATE. 


81 


take  such  language  from  you,'  it  was  holden  not  to  be  an  assault,  on 
the  ground  that  he  did  not  design  to  do  the  other  party  any  corporal 
hurt  Rt  that  time,  and  that  a  man's  intention  irust  operate  with  hia 
act  In  constituting  an  assault. 

"It  has  been  laid  down  by  a  very  learned  judg*-.  notwithstanding 
a  contrary  opinion  in  an  earlier  case,  that  if  a  pcrpjn  present  a  pistol, 
purporting  to  be  a  loaded  pistol,  so  near  as  tr  produce  danger  to  life 
If  the  pistol  had  gone  off,  it  is  an  assault  in  point  of  law,  although  in 
fact  tlie  pistol  be  unloaded.  The  learned  Judge  said,  'My  Idea  is,  that 
It  is  an  assault  to  present  a  pistol  at  all,  whether  loaded  or  not.  If 
you  threw  the  powder  out  of  the  pan,  or  took  the  percussion  cap  off, 
and  said  to  the  party  this  is  an  empty  pistol,  then  that  would  be  no 
assault,  for  there  the  party  must  see  that  it  was  not  possible  that 
he  should  be  injured;  but  if  a  person  presents  a  pistol  which  has  the 
apiioavance  of  being  loaded,  and  puts  the  party  into  fear  and  alarm 
that  Is  what  it  is  the  object  of  the  law  to  prevent."  (Reg.  v.  8t.  Oeorge, 
9  C.  &  P.  483,  Parke,  B.) 

"However,  where  in  an  action  for  an  assault  and  presenting  a  loaded 
pistol  at  the  plaintiff,  it  appeared  th^t  the  defendant  cocked  a  pistol, 
and  presented  it  at  the  plaintiff's  head,  and  said,  if  he  was  not  quiet 
he  would  blow  his  brains  out;  but  there  was  no  evidence  that  the  pis- 
tol was  loaded;  Lord  Ablnger,  C.  B.,  held,  that  if  the  pistol  waa 
not  loaded  it  would  be  no  assault.  {Blake  v.  Barnard,  9  C.  &  P.  C2G.) 
"It  Is  not  every  threat,  where  there  is  no  actual  personal  violence, 
that  comtitules  an  assault;  there  must,  in  all  cases,  be  the  means  of 
carrying  the  threat  Into  effect.  If,  therefore,  a  party  be  advancing  in 
a  threatening  attitude,  e.  g.,  with  his  fist  clenched,  to  strike  another, 
so  that  his  blow  would  almost  immediately  have  reached  such  per- 
son, and  be  then  stopped,  it  is  an  assault  in  law,  if  his  intent  were  to 
strilvo  such  person,  though  he  was  not  near  enough  at  the  time  to  have 
struck  him.     (Stephens  v.  Myers,  4  C.  &  P.  349,  Tindal,  C.  J.) 

"The  plaintiff  was  walking  on  a  footpath  by  a  road  side,  and  the 
defendant,  who  was  on  horseback,  rode  after  him  at  a  quick  pare; 
the  plaintiff  then  ran  away  into  his  own  garden,  and  the  defendant 
rode  up  to  his  gate,  and  shook  his  whip  at  the  plaintiff,  who  was 
about  three  yards  off;  it  was  held,  that  If  the  defendant  rode  after 
the  plaintiff,  so  as  to  compel  him  to  run  into  his  garden  for  shelter  to 
avoid  being  beaten,  it  was  an  assault."  (Mortin  v.  Shoppce,  3  C.  &  P. 
373,  Lord  Tenterden,  C.  J.) 

(Sun-xoTE. — The  above  bracket  citations,  do  not  appear  in  Mr.  Rus- 
sell's original  text;  but  are  taken  from  the  foot  notes. — J.  F.  G.) 

What  is  a  battery — Definition,  etc.,  hy  Sir  William  Russell. — In  1 
Russell  on  Crimes,  pages  751-752,  the  author  says: 

"A  battery  is  more  than  an  attempt  to  do  a  corporal  hurt  to  another: 
but  any  injury  whatsoever,  be  it  ever  so  small,  being  actually  done 
to  the  person  of  a  man,  In  an  angry  or  revengeful,  or  rude  or  insolent 
manner,  such  as  spitting  in  his  face,  or  in  any  way  touching  him  in 
anger,  or  violently  Jostling  him  out  of  the  way,  is  a  battery  in  the  eye 
of  the  law.  For  the  law  cannot  draw  the  line  between  different  de- 
Vol.  XIII— 6 


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AMERICAN  CRIMINAL  REPORTa 


grees  of  violence,  and,  therefore,  toUlly  prohibits  the  first  and  low- 
est stage  of  It;  every  man's  person  being  sacred,  and  no  other  having 
a  right  to  meddle  with  It  In  any  the  slightest  manner.  It  should  be 
observed  that  every  battery  Includes  an  assault. 

"The  Injury  need  not  be  effected  directly  by  the  hand  of  the  party. 
Thus  there  may  be  an  assault  by  encouraging  a  dop;  to  bite;  by  riding 
over  a  person  with  a  horse;  or  by  wilfully  and  violently  driving  a. 
cart,  &c..  against  the  carriage  of  another  person,  and  thereby  causing 
bodily  Injury  to  the  persons  traveling  In  It,  And  It  seems  that  it  is  not 
necessary  that  the  assault  should  be  immediate;  as  where  a  defendant 
threw  a  lighted  squib  into  a  marliet-place,  which,  being  tossed  from 
hand  to  hand  by  different  persons,  at  last  hit  the  plaintiff  in  the  face, 
and  put  out  his  eye,  it  was  adjudged  that  this  was  actionable  as  an 
assault  and  battery.  And  the  same  has  been  holden  where  a  person 
pushed  a  drunken  man  against  another,  and  thereby  hurt  him:  but  If 
such  person  intended  doing  a  right  act,  as  to  assist  the  drunken  ninn, 
or  to  prevent  him  from  going  along  the  street  without  help,  and  in  so 
doing  a  hurt  ensued,  he  would  not  be  answerable." 

A/ica:iU  and  assault  and  battery — The  latter  includes  the  former- 
Views  of  Mr,  East.— In  his  Crown  Law  (written  about  1803),  Mr.  East 

says : 

"Before  I  proceed  to  mention  assaults  of  an  aggravated  kind,  for 
which  particular  provision  has  been  made  by  the  law,  It  may  be  proper 
to  advert  to  what  are  called  common  assaults  and  batteries,  which  I 
shall  do  very  shortly  inasmuch  as  they  are  so  fully  discussed  in  other 
books  treating  of  the  civil  remedy  for  such  injuries  to  the  party 
grieved. 

"An  assault  is  an  attempt  or  offer  with  force  and  violence  to  do  a 
corporal  hurt  to  another,  whether  from  malice  or  wantonness;  as  by 
striking  at  him,  or  even  holding  up  one's  fist  at  him  In  a  threatening 
cr  insulting  manner,  or  with  such  other  circumstances  as  denote  at 
the  time  an  intention  coupled  with  a  present  ability  of  using  actual 
violence  against  his  person;  as  by  pointing  a  weapon  at  him  within 
the  reach  of  it.  Where  the  injury  is  actually  inflicted,  it  amounts  to 
a  battery  (which  includes  an  assault):  and  this,  however  small  it  may 
be;  as  by  spitting  in  a  man's  face  or  any  way  touching  him  In  anger 
without  any  lawful  occasion.  But  if  the  occasion  were  merely  acci- 
dental and  undesigned,  or  if  it  were  lawful,  and  the  party  used  no 
more  force  than  was  reasonably  necessary  to  accomplish  the  purpose, 
as  to  defend  himself  against  a  prior  assault,  nr  to  arrest  the  other, 
or  make  him  desist  from  some  wrongful  act  cr  endeavor,  or  the 
like;  it  is  no  assault  or  battery  In  the  law,  and  the  party  may  justify 
the  force;  and  any  matter  in  justification  or  excuse,  Fuch  as  son  assault 
deviesne,  may  upon  an  indictment  be  given  in  evidence  under  the  gen- 
eral issue:  and  the  defendant  who  is  charged  with  an  assault  and  bat- 
tery, may  be  found  guilty  of  the  one  and  acquitted  of  the  other.  But 
son  ascault  demesne  Is  no  excuse,  If  the  retaliation  of  the  defendant 
were  excessive,  and  bore  no  proportion  to  the  necessity,  or  the  provo- 
cation received.    These  offences  are  punishable  by  fine  and  Imprison- 


PENNY  V.  STATE. 


83 


mcnt  and  finding  sureties,  or  with  other  Ignominious  corporal  penal- 
tioH,  fliich  as  the  pillory,  where  they  are  committed  with  any  very 
atrociouH  design;  as  in  the  case  of  assaults  with  the  Intent  to  murder, 
nwlsh,  or  commit  other  felonies  or  high  misdemeanors;  which  intent, 
to  be  collected  from  the  circumstances  of  the  case,  is  no  doubt  a  very 
great  iiKKi'avatlon  of  the  offense."      I  East's  Crown  Law  406. 

"What  amounts  to  an  aaaauU" — Roacoe'a  definition — Mr.  Henry  Ros- 
coc,  in  his  work  entitled,  "Criminal  Evidence,"  says: 

"An  assault  is  any  attempt  or  offer  with  force  or  violence  to  do  a 
ror|)oral  hurt  to  another,  whether  from  malice  or  wantonness,  as  by 
strii.inK  nt  him  or  even  holding  up  the  flst  at  him  in  a  threatening 
or  inHulting  manner,  or  with  such  other  circumstances  as  denote  at 
the  time  an  intention,  coupled  with  a  present  ablity,  of  actual  violence 
asalnst  his  person,  as  by  pointing  a  weapon  at  him  when  he  is  within 
the  reach  of  It.  When  the  injury  la  actually  inflicted  It  amounts  to  a 
lattery,  which  Includes  an  assault,  and  this,  however  small  it  may  be, 
as  by  spitting  in  a  man's  face  or  in  any  way  touching  him  in  anget 
without  lawful  provocation.  I  East,  P.  &  C.  406,  B.  N.  P.  15,  Hawlt. 
p.  C.  b  I,  c.  G2,  s  12,  I  Russell,  S04.  So  there  may  be  an  assault  by 
exposing  a  child  of  tender  years  or  a  person  under  the  control  and 
dominion  of  the  party,  to  the  Inclemency  of  the  weather.  Ridley's 
case,  2  Campb.  650,  I  Russell,  605.  But  a  mere  omission  to  do  an  act 
cannot  be  construed  into  an  assault.  Thus  where  a  man  l^ept  an 
idiot  brother  who  was  bed-ridden,  in  a  dark  room  in  his  house,  with- 
out sufficient  warmth  or  clothing,  Burrough,  J.,  ruled  that  these  facts 
would  not  supi)ort  an  indictment  for  assault  and  false  imprisonment; 
for  although  there  had  been  negligence,  yet  mere  omission,  without  a 
duty,  would  not  create  an  indictable  offense.  Smith's  case,  2  C.  &  P. 
44D. 

"If  a  master  take  indecent  liberties  with  a  female  scholar,  without 
her  consent,  though  she  do  not  resist,  he  will  be  guilty  of  a  common 
assault.  A'l'c/iors  rase,  Russ.  &  Ry.  130.  And  where  a  person  profess- 
ing medicine,  desired  a  young  girl  who  came  to  him  as  a  patient,  to 
strip  naked,  and  himself  took  off  her  clothes  and  rubbed  her,  with  some- 
thing from  a  bottle,  he  was  Indicted  as  for  a  common  assault,  and  the 
judge  left  it  to  the  jury  to  say  whether  the  prisoner  really  believed 
that  the  stripping  her  could  assist  him  in  curing  her;  the  jury  having 
found  that  he  had  no  such  belief,  and  that  it  was  wholly  unnecessary, 
he  was  convicted;  and  on  a  case  reserved,  the  judges  held  that  ih3 
conviction  for  a  common  assault  was  right.  Rosinski'a  case,  I  Moody, 
C.  C.  19. 

"If  parish  officers  cut  off  the  hair  of  a  pauper  in  the  working-house, 
with  force  and  against  his  consent,  it  is  an  assault.  Forde  v.  Skinner, 
4  C.  &  P.  239. 

"Although  to  constitute  an  assault  there  must  be  a  present  ability 
to  indict  an  injury,  yet  if  a  man  is  advancing  in  a  threatening  atti- 
tude to  strike  another,  so  that  the  blow  would  almost  Immediately 
reach  him  if  he  were  not  stopped,  and  he  is  stopped,  this  is  an  assault. 
Stephens  v.  Myers,  4  C.  &  P.  349. 


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AMERICAN  CRIMINAL  REPORTS. 


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"It  has  been  frequently  said  that  every  Imprisonment  includes  a 
battery.  B.  N.  P.  22,  I  Selw.  N.  P.  Imprisonment  I.  But  this  doctrine? 
has  been  denied.    Emmett  v.  Lyne,  I  N.  R.  255. 

"In  cases  of  assault,  as  in  all  other  offences,  if  several  act  in  con 
cert,  encouraging  one  another  and  co-operating,  they  are  all  equally 
guilty,  though  only  one  commit  the  actual  assault.  Per  Bayley,  J. 
Anon.  Lewln,  C.  C.  11." 

"What  docs  not  amount  to  an  assault"— Mr.  Roscoe  says: 

"Although  it  was  formerly  doubted,  it  is  now  clear  that  no  words, 
whatever  nature  they  may  be  of,  will  constitute  an  assault.  Hawk. 
P.  C.  b  I,  c.  G2,  s  1,  I  Bac.  Ab.  Assault  &  Battery,  I  Russell,  604.  But 
words  may  qualify  what  would  otherwise  be  an  assault,  by  showin.^' 
that  the  party  intends  no  present  corporal  injury,  as  where  a  person 
meeting  another  laid  his  hand  upon  his  sword,  saying,  "If  it  were  m.t 
assize  time  I  would  not  take  such  language  from  you;"  for  it  shows 
that  he  had  not  a  design  to  do  the  party  any  corporal  hurt.  Turbir- 
vine  V.  Savage,  I  Mod.  3,  2  Keb.  545."— (Roscoe's  Cr.  Ev.  211.) 

"What  does  not  amount  to  an  assault — Lawful  chastisement" — Wife 
beatinr/.— Mr.  Roscoe  says:  "If  a  parent  in  a  reasonable  manner  chas- 
tises his  child,  or  a  master  his  servant,  being  actually  his  servant  at 
the  time,  or  a  schoolmaster  his  scholar,  or  a  gaoler  his  prisoner,  cr  a 
husband  b's  wife,  or  if  one  confine  a  friend  who  is  mad,  and  bind  and 
beat  him,  uc,  in  such  circumstances  it  is  no  assault.  Hawk.  P.  G. 
b  I,  c  30,  s.  23;  Com.  Dig.  Pleader  (3  M.  13).  A  defendant  may  justify 
even  a  Mayhem,  if  done  by  him  as  an  officer  of  the  army  for  disobe- 
dience of  orders,  and  he  may  give  in  evidence  the  sentence  of  a  coun- 
cil of  war,  upon  a  petition  against  him  by  the  plaintiff;  and  if  by  tlie 
sentence,  the  petition  is  dismissed,  it  will  be  conclusive  evidence  in 
favor  of  the  defendant.  Lane  v.  Deghcrij.  B.  N.  P.  19.  In  all  cases  of 
chastisement  It  must  in  order  to  be  justifiable,  appear  to  have  boon 
reasonable.  I  East  P.  C.  40G;  and  see  post,  title,  'Murder.'"  (Roscoe's 
Cr.  Ev.  212.) 

Wife  heating. — We  do  not  give  the  above  as  an  authority  to  justify 
■vwfe  beating  at  the  present  time.  Even  at  the  time  Roscoe  wroto,  it 
would  seem  that  the  doctrine,  that  a  man  had  a  right  to  chastise  liis 
wife,  if  he  used  a  switch  no  thicker  than  his  thumb,  had  losi.  mu(  h 
of  its  force  in  advanced  society.  People  of  the  lower  rank  at  the  time 
of  Blackstone,  seemed  to  still  claim  this  privile,T:e.  1  Blackstcne  Com. 
444. 

What  does  not  amount  to  an  assault — Threats  to  shoot  followct  hij 
retiring  into  the  house,  seizing  a  gun  and  icorking  the  lever  as  if  loirl- 
ing  it,  but  upon  request  delivering  it  to  wife,  and  no  cfjvrt  ma.lc  lu 
return  to  scene  of  dilfiiuUy, — held,  not  an  assault — A  Texas  case. — It 
was  so  held  by  the  Criminal  Court  of  Appeals  of  Texas  on  Dec.  11, 
1902,  in  Sjjradling  v.  State,  71  S.  W.  Rep.  17.  The  opinion  being  as 
follows: 

Davidsox,  p.  J.  Under  an  Information  charging  aggravated  assault, 
appellant  was  convicted  of  simple  assault,  and  fined  $5,  At  a  fcrnier 
day  of  this  term  the  appeal  was  dismissed  because  of  a  defective  rocog- 


PENNY  V.  STATE. 


85 


nl^anre  transcribed  In  the  record;  but  this  defect  has  been  cured  by  a 
certified  copy  of  recognizance  showing  it  is  in  compliance  with  the 
statute,  agreed  to  by  counsel.  The  cause  Is  reinstated  upon  the  docket, 
and  will  be  considered  on  its  merits. 

Tlie  State  relies  alone  upon  the  testimony  of  the  alleged  assaulted 
party,  who  had  rented  land  from  appellant  for  the  year  1902.  After 
working  a  few  days,  he  concluded  to  hire  himself  out  to  a  neighbor,  to 
assist  in  working  his  land  for  a  few  days.  He  says  that  when  he  in- 
fcrined  appellant  of  this,  appellant  desired  him  to  work  for  his  (ap- 
pellant's) brother-in-law.  Dr.  Cooper,  and,  upon  his  declining,  appellant 
became  very  angry,  and  began  cursing  and  abusing  him;  to  which  he 
replied  that  he  did  not  want  any  trouble  with  appellant,  but  that  he 
nor  any  other  man  had  the  right  to  curse  and  abuse  him.  Appellant 
said  he  would  get  his  Winchester,  and  blow  his  brains  out.  That  he 
went  inside  tl'.a  house,  and  in  the  south  room,  took  his  Winchester, 
and  worked  tlie  lever  as  though  throwing  a  shell  in  it.  There  was  a 
hall  running  through  the  house  east  and  west,  and  a  gallery  on  the 
east  side.  Witness  was  standing  off  the  gallery  in  the  direction  of  the 
gate  in  front  of  the  house,  and  appellant  was  Inside  the  south  room, 
which  opened  in  the  hall.  He  says  that,  after  he  had  worked  the  lever 
as  above  indkated,  his  wife,  Mrs.  Spradling,  took  the  gun  away  from 
him.  and  that  he  (witness)  went  away.  This  is  the  State's  case.  Ap- 
peliant'.-;  testimony  shows  that  Spradling  took  the  gun  from  the  rack, 
and  worked  the  lever  to  see  if  there  was  a  cartridge  in  it.  His  wife 
came  in  the  room  at  this  juncture,  and  requested  him  to  hand  her  the 
gun,  which  he  did.  And,  further,  defendant's  testimony  shows  the  po- 
sition he  occupied  In  the  room  rendered  him  invisible  to  the  assaulted 
party.  We  do  not  believe  the  e*'  'ence  justifies  the  conviction.  The 
evidence  is  not  sufficient  to  bring  it  within  the  terms  of  the  statute 
which  makes  it  a  simple  assault  to  use  any  dangerous  weapon,  or  the 
femblance  thereof,  ia  an  angry  or  threatening  manner,  with  intent  to 
alarm  another,  and  under  circumstances  calculated  to  effect  that  ob- 
ject. He  did  not  us';,  or  attempt  to  use,  the  gun,  nor  display  it  In  a 
threatening  manner,  as  we  understand  the  testimony.  He  had  gone 
into  his  room,  an'',  taken  the  gun  down,  and  his  wife  took  it  away 
from  him.  This  is  the  State's  view  of  it.  This  is  not  sufficient.  Lee 
V.  i<tate,  34  Tex.  Cr.  R.  519,  31  S.  W.  667. 

The  judgment  is  reversed,  and  the  cause  remanded. 

What  does  amounfto  an  assault — A  Texas  case. — In  Fortenberry  v. 
State.  72  S.  W.  Hep.  593,  decided  February  25,  1903,  the  Court  said: 

"There  is  a  general  allegation  in  the  motion  for  new  trial  that  the 
evidence  does  not  support  the  conviction.  This  will  be  viewed  alone 
from  the  standpoint  of  the  verdict;  that  is,  the  conviction  for  the  as- 
sault. It  seems  that  Alston  was  driving  a  considerable  herd  of  sheep 
near  the  little  town  of  Clifton,  when  defendant  and  several  others 
assembled  themselves  and  followed  him  a  short  distance  above  the 
town,  and  undertook  to  interfere  with  his  driving  the  sheep  through 
an  inclosure  r'.ong  the  ordinarily  traveled  road.  They  first  attacked 
him  by  running  in  among  the  sheep,  and  undertook  to  scatter  them 


'  il 


;  §: 


■  ife 


li-i-i 

i!' 

S    ;;/'-| 

II  r  -I 

;  '             ■     t 

1 

86 


AMERICAN  CRIMINAL  REPORTS. 


end  drive  them  away,  making  a  great  deal  of  noise  by  hallooing,  yell 
ing,  and  waving  their  hats.  Some  of  them  came  back,  and  made  au 
assault  upon  him  with  a  knife.  This  was  abandoned,  and  they  betoolc 
themselves  the  second  time  to  chasing  the  sheep,  and  running  them 
into  an  adjoining  pasture;  and,  after  chasing  the  sheep  for  some  time, 
appellant  and  three  others  came  back,  and  surrounded  Alston,  whea 
cne  of  the  number  took  hold  of  him.  They  did  not  inflict  any  injury 
upon  him  further  than  as  stated.  One  of  them  caught  hold  of  him, 
while  the  other  three  were  present,  and,  to  use  the  language  of  the 
witness,  "surrounded  me,  and  one  of  them  tcok  hold  of  me."  Just  at 
this  juncture  Alston  drew  his  pistol,  and  they  all  stepped  back  ami 
went  away,  defendant  being  among  the  number.  We  are  of  opini>.n 
this  evidence  is  sufficient  to  make  out  the  assault. 
"The  judgment  is  affirmed." 


State  v.  Lewellyn. 
Mo.  App.  469—67  S.  W.  Rep.  677. 
Decided  April  1.  1902. 


Assault:  What  constitutes  an  assault — Sufficiency  of  indictment- 
Instructions — Failure  to  arraign  defendant  and  to  require  him  to 
plead.  , 

1.  The  indictment,  a  copy  of  which  appears  In  the  opinion,  is  de- 

clared a  good  Indictment  for  assault. 

2.  "Pointing  a  pistcl  at  another  within  shooting  distance,  constitules 

an  assault." 

3.  In  a  case  where  the  charge  is  that  of  assault,  by  pointing  a  revol- 

ver, it  is  proper  to  reluse  instructions,  which  declare,  that  an 
intention  to  shoot  or  to  do  bodily  harm  is  essential  of  the  crime 
alleged. 

4.  Where  no  arraignment  of  the  defendant  is  had,  and  no  plea  to 

the  indictment  entered  by  him,  there  is  nothing  for  the  jury  to 
try. 

Court  of  Appeals  of  St.  Louis,  Mo. 

Appeal  from  Circuit  Court,  Clark  County,  the  Hon.  Eilwiu 
R.  McKee,  Judge. 

GtOTge  Lewellyn,  convicted  of  assault,  appeals.    Reversed. 

J.  A.  Whiteside,  for  appellant. 
Jien  Smith,  for  the  State. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  la 
this  volume. 


STATE  V.  LEWELLYN. 


87 


Bi.AXD,  P.  J.  Defendant  was  tried  and  convicted  on  the 
following  indictment : 

*'We,  the  grand  jury  for  the  State  of  Missouri,  impaneled, 
sAVoni,  and  charged  to  inquire  within  and  for  the  body  of  said 
cdunty,  upon  our  oath  present  and  charge  that  on  or  about  the 
10th  day  of  August,  1900,  at  the  county  of  Clark,  in  the  State 
cf  Missouri,  one  Dr.  Geo.  LewcUyn  did  then  and  there  unlaw- 
fully, willfully,  and  intentionally  assault,  strike,  beat,  an  I 
Avound  one  A.  J.  Van  Velson,  by  then  and  there  pointing  a  I'e- 
volvcr  at  the  said  A.  J.  Van  Velson  in  a  rude  and  threatening 
manner,  contrary  to  the  statutes  in  such  cases  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State. 

Ben  Smith,  Pros.  Atty. 

"A  true  bill. 

"11.  B.  llilontgomery,  Foreman." 

The  evidence  tended  to  prove  that  the  defendant  went  into 
the  post  office  at  Winchester,  in  Clark  county,  kept  by  the  pros- 
ecuting witness,  A.  J.  Van  Velson,  asked  the  prosecuting  wit- 
ness what  he  kept  there,  pulled  out  a  revolver,  and  stuck  it  intj 
the  delivery  window  and  said,  ''Deliver  me  that  mail  over." 
Tl;e  prosecuting  witness  dropped  down  behind  the  counter, 
called  to  his  daughter  to  bring  him  his  shotgun,  and  defemlant 
then  ran  out  of  the  door  into  the  street. 

Defendant  asked,  and  the  court  refused  to  give,  the  follow- 
ing instructions : 

(1)  "The  court  instructs  the  jury  that,  under  the  law,  the 
indictment  and  evidence  in  this  case  are  not  sufficient  to  sus- 
tain a  verdict  of  guilty,  and  you  are  instructed  to  find  the  de- 
fendant not  guilty. 

(2)  "The  court  instructs  the  jury  that,  unless  you  believe 
from  the  evidence  that  defendant  intended  to  shoot  the  prose- 
cuting witness,  you  will  find  the  defendant  not  guilty. 

(3)  "The  court  instructs  the  jury  that  unless  they  find 
from  the  evidence  that  defendant  intendefi  to  shoot  the  prose- 
cuting witness,  or  do  him  bodily  harm,  they  will  find  the  de- 
fendant not  guilty." 

The  defendant  filed  timely  motions  for  new  trial  and  in  ar- 
rest of  judgment.     The  motion  in  arrest,  omitting  caption,  is 
as  follows: 
^    "Xow  comes  George  E.  Lewellyn,  the  said  defendant,  and 


I 


til 


illh 


V 


88 


AMERICAN  CRIMINAL  REPORTS. 


i  i'ji 


Mfi 


moves  the  court  to  arrest  the  judgment  in  this  cause  for  the 

following  reasons : 

(1)  J3ecausc  the  indictment  is  insufficient  in  law,  and  docs 
not  charge  any  offense  against  this  defendant,  in  this,  to-wit: 
Tlio  indictment  docs  not  charge  that  the  revolver  was  loaded, 
nor  that  the  defendant  intended  to  shoot  or  strike  or  do  bodily 
harm  to  the  prosecuting  witness,  Van  Velson. 

(2)  Because  the  indictment  and  record  in  this  case  is  in- 
Eufricient  to  sujiport  a  judgment  of  conviction,  and  upon  the 
v.luilo  record  the  verdict  and  judgment  should  he  for  the  de- 
fendant." 

These  motions  were  both  overruled,  and  defendant  appealeil. 

The  contention  of  appellunt  is  that  the  indictment  failed  to 
cl'arge  any  intent  on  the  part  of  the  appellant  to  shoot  the  pros- 
ecuting witness. 

The  indictment  was  for  a  common  assault.  The  forms  given 
by  the  text  Avriters  for  this  character  of  indictment  are:  "Did 
make  an  assault,  and  him,  the  said  C.  D.,  then  did  beat."  1 
Arch.  Cr.  Prac.  &  PI.  915,  92G.  "Did  make  an  assault,  and 
him,  the  said  J.  If.,  then  and  there  did  l)eat,"  etc.  3  Chit.  Cr. 
Law,  S21.     The  indictment,  we  think,  was  sufficient. 

A])pellant',s  content i(in  is  that  instructions  Jsos,  2  and  3  asked 
by  him  should  have  been  given. 

In  Slate  v.  Scars,  80  !Mo.  1G9,  the  court  held  that  an  lu- 
st i'iK-ti<m  given  which  declared  that  ''if  defendant  assaulted 
Wliidhy  by  jmiutiug  a  loaded  gun  at  him  in  a  threatening  man- 
ner, and  cocking  it  within  a  shooting  distance  of  him,  they 
shon'.d  find  defendant  guilty  of  a  common  assault,"  was  err<ine- 
ous,  in  that  it  omitted  the  element  of  the  intention  on  the  part 
of  tho  defendant  to  do  an  injury.  This  case  is  approvingly 
cited  in  Slate  v.  Melton,  102  .Mo.j  (587,  15  S.  W.  139.  T.r.t  in 
the  later  case  of  State  v.  Doolnj,  121  lilo.  591,  20  S.  W.  a.-.S, 
it  is  luld  that,  "pointing  a  ])istol  at  another  within  shooting  ili-;- 
tance  constitutes  an  assault."  See,  also.  Slate  v.  Epparsoii, 
27  Mo.  255. 

In  2  Bish,  Cr.  Law,  §  23,  the  author  defines  an  assault  as 
"any  unlawful  jjhysical  force,  partly  or  fully  put  in  niotinn, 
creating  a  reasonable  apprehension  of  immediate  physical  in- 
jury to  a  human  being,  as  raising  a  cane  to  strike  him;  ]K)int- 
ing,  in  a  threatening  manner,  a  loaded  gun  at  him;  and  the 


^    '-M: 


STATE  v:  LEWELLYN. 


89 


like."  In  the  same  volume  (section  31)  the  author  says: 
''Merely  to  draw  a  pistol,  without  presenting  or  cocking  it, 
comes  short  of  an  assault,  but  the  attending  circumstances  may 
render  it  such.  To  proceed  further,  and  point  it  at  a  person, 
vill  complete  the  assault,  or  not,  according  as  words  and  the 
ether  accompaniments  create,  or  riot,  an  apparent  danger  or  a 
battery."  And  in  respect  to  the  intent  the  same  author,  at  sec- 
tion (50,  vohmie  2,  says:  "It  is  not  necessary,  in  simple  as- 
sault, that  there  should  be  the  specific  purpose  to  do  a  particu- 
lar injury,  but  general  malevolence  or  recklessness  is  sufficient." 
To  point  a  pistol  at  another  with  intent  to  shoot  him  would 
raise  the  gTade  of  the  ofFense  from  a  common  to  a  felonious 
assault,  and  it  would  have  boon  error  to  have  instructed  the 
jury  to  find  the  defendant  guilty  of  a  felonious  assault  in  order 
to  convict  him  of  a  common  assault.  The  court  did  not  com- 
mit error  in  refusing  the  instructions. 

There  was  no  arraignment  of  the  defendant  and  no  plea  of 
not  guilty  entered  by  him.  There  was  therefore  no  issue  to  be 
tried  by  the  jury.  State  v.  WalJcdr,  119  Mo.  467,  24  S.  W. 
mil ;  Slate  V.  Williams,  117  Mo.  379,  22  S.  W.  1104;  State  v. 
Hull,  73  Mo.  Ai>p.  300;  State  v.  Grassle,  74  Mo.  App.  313. 

Tlic  judgment  is  reversed,  and  the  cause  remanded. 

Barclay  and  Goode,  JJ.,  concur. 

NoTK  (by  J.  F.  G.). — It  will  be  observed  that  the  conviction  was 
reversed  because  the  accused  was  not  arraigned  and  required  to  pleal. 
This  at  first  glance  may  seem  frivolous;  but  see  Browning  v.  Stato 
and  Notes,  11  American  Criminal  Reports,  C45-G51. 

As  to  indictments  of  this  class  see  cases  In  notes  in  present  volume 
pn.  — ;  as  to  I'^Hctments  in  general,  see,  11  Am.  Cr.  R.  50G-518;  also 
index  of  10  Am.  Cr.  R.;  also  Table  of  Topics  in  present  volume. 


,.i 


u  ^ 


;i  'I: 


00 


'I  »^ 


iJ.I: 


AMERICAN  CRIMINAL  REPORTS. 


Fuller  v.  State. 


44  Tex.  Crlm.  Rep.  463—72  S.  W.  Rep.  184. 

Decided  February  11,  1903. 

Assault:    "Kissing  sign" — Assault  defined. 

Simply  making  a  "kissing  sign"  at  a  young  girl,  is  not  an  assault. 

Appeal  from  the  Parker  County  Court ;  Hon.  D.  M.  Alexan- 
der, Judge. 

Henry  Fuller,  convicted  of  an  aggravated  assault,  appeals. 
Reversed. 

Kuteman  &  McKinney,  for  the  appellant. 
R.  B.  Hood  and  Hoivard  Martin,  Assistant  Attorney-General, 
for  the  State. 

Hendersox,  J.  Appellant  was  convicted  of  an  aggravated 
assault,  and  his  punishment  assessed  at  a  fine  of  $25 ;  henec 
this  appeal. 

The  only  question  involved  in  this  case  is  whether  or  not 
the  facts  show  an  assault.  The  prosecutrix,  a  girl  about  14 
years  of  ago,  was  the  only  eyewitness  to  the  transaction.  A])- 
pellant,  Avho  was  a  married  man,  lived  a  near  neighbor,  and 
some  intimacy  existed  between  the  families,  and  prosecutrix 
was  in  the  habit  of  visiting  his  house.  On  the  particular  occa- 
sion appellant  called  at  the  house  where  prosecutrix  lived,  to 
return  a  saw  which  he  had  borrowed.  Prosecutrix  was  engaged 
in  sweeping  the  room.  Appellant  had  some  cimversation  with 
her,  and  while  she  was  near  a  table,  sweeping,  he  walked  up  to 
the  table,  and,  as  she  states,  made  a  "kissing  sign  at  her" — 
that  is,  "he  puckered  his  lips  and  smacketl  them."  That  he  did 
this  twice,  but  did  not  touch  her,  and  made  no  effort  to  kiss  her 
or  use  any  violence.  She  says  that  she  stepped  back  and  saiil: 
"Xow  look  what  you  have  caused  me  to  do.  I  nearly  broke 
ma's  specks.  If  that  is  the  best  you  can  do,  you  had  better  go 
home."    The  specks  were  lying  on  the  floor.    After  this  he  left, 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
ttiis  volume. 


FULLER  V.  STATE. 


91 


but  she  states  that  he  came  back  where  she  was,  and  told  her 
to  say  nothing  about  it;  that  it  might  make  trouble.  Witness 
further  states  that  appellant  made  no  improper  act  or  remark 
to  her,  and  had  never  said  anything  improper  to  her.  At  the 
time  tliis  occurred  he  was  standing  at  the  side  of  the  table,  and 
she  Avas  standing  at  the  end  of  it.  This  put  them  some  three 
or  four  feet  apart. 

An  assault  is  defined  to  be  "any  attempt  to  commit  a  bat- 
tery, or  any  threatening  gesture  showing  in  itself,  or  by  words 
aceoinpanying  it,  an  immediate  intention,  coupled  with  the 
ability,  to  commit  a  battery."  If  appellant  by  his  acts  had 
manifested  any  intention  at  the  time  to  lay  hands  on  prosecu- 
trix and  to  kiss  her  without  her  consent,  his  acts  and  conduct 
would  unquestionably  have  made  an  assault;  but  we  fail  to 
gather  from  the  statement  of  what  occurred,  as  contained  ill 
the  record,  that  he  did  anything  at  the  time  showing  that  ho 
intended  to  take  a  kiss  without  the  consent  of  the  prosecutrix. 
What  he  did  could  not  be  construed  into  any  more  than  asking 
prosecutrix  to  give  him  a  kiss;  and  even  if  he  had  done  this, 
without  manifesting  some  ulterior  purpose  to  use  violence  to 
force  her  to  comply  with  his  request,  it  would  not  amount  to 
an  assault,  for  there  would  be  lacking  the  essential  element, 
"showing  by  his  acts  and  conduct  an  immediate  intention  to 
commit  a  battery."  It  may  have  been,  and  doubtless  was,  im- 
proper for  him  to  make  the  "kissing  sign"  to  prosecutrix,  as 
she  terms  it,  or  suggest  that  he  would  like  to  kiss  her ;  but  this, 
under  the  circumstances,  did  not  render  him  guilty  of  an  as- 
sault. Flourmy  v.  Stale,  25  Tex.  App.  244,  7  S.  W.  865: 
Lcc  V.  State,  34  Tex.  Cr.  R.  519,  31  S.  W.  667. 

The  judgment  is  reversed,  and  the  cause  remanded. 

Reversed  and  remanded. 


Hi 


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if'    i  ' 

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IP  '  t  .  • 


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M-  -11 


Note.— See  the  two  preceding  cases  and  notes. 


82 


AMERICAN  CRIMINAL  REFORTa 


'■«:! 


I       ! 


State  v.  IIuxt. 

25  R.  I.  69—54  Atl.  Rep.  773. 

Decided  March  18,  1903. 

Assault:   Inaccuracy  of  aim—Instructiona. 

"The  accuracy  or  inaccuracy  of  aim  does  not  determine  guilt  or 
Innocence  of  the  accused." 

James  T.  Hunt,  convicted  of  simple  assault,  petitions  for  a 
new  trial.    Petition  denied. 

Argued  before  Stiuess,  C.  J.,  and  Tillinghast  and  Douglas, 
J.J. 

The  Attorney-General,  for  the  State. 
Franklin  F.  Owen,  for  the  defendant. 

Per  Curiam.  The  only  ruling  of  the  court  to  which  the  de- 
fendant excepted  is  the  refusal  to  charge  that  "the  jury  must 
find  that  the  bullet  went  in  the  direction  of  the  said  Herbert 
W.  Root,  or  there  can  be  no  assault  with  a  dangerous  weapon." 
It  is  clear  that  this  refusal  was  right.  "An  assault  consists  in 
an  offer  to  do  bodily  harm,  made  by  a  person  who  is  in  a  posi- 
tion to  inflict  it,"  as  the  court  below  charged.  The  accuracy 
or  inaccuracy  of  aim  does  not  determine  guilt  or  innocence  of 
iho  offense.  The  evidence  may  properly  have  left  in  the  minds 
of  the  jury  a  reasonable  doubt  of  the  commission  of  the  whole 
offense  charged  in  the  indictment,  but  it  fully  justified  their 
verdict  that  the  defendant  was  guilty  of  simple  assault. 

Petition  for  new  trial  denied,  and  case  remitted  to  the  Com- 
mon Pleas  Division  for  sentence. 

Note. — See  the  three  preceding  cases  and  notes. 


STATB  V.  TOUNC^.  98 


State  v.  Young. 

22  Wash.  273—60  Pac.  Rep.  650. 

Decided  March  21.  1900. 

Assault  with  Intent  to  Commit  Mubdeb — Obades  of  the  Offense: 

Instructions. 

1.  An  information  which  charges  an  assault  "with  Intent  to  kill  and 

murder,"  Is  equivalent  to  a  charge  of  an  assault  with  Intent  to 
commit  a  bodily  injury;  and  will  sustain  a  verdict  for  such  lower 
offense. 

2.  It  is  the  right  of  the  accused,  to  have  all  the  grades  of  the  offense 

charged,  that  are  consistent  with  the  evidence,  submitted  to  the 
jury  by  proper  instructions;  and  a  refusal  to  so  charge  the  jury. 
Is  prejudicial  error. 

Appeal  from  Superior  Court,  King  County ;  lion.  O.  Jacobs, 
Judge. 

William  Young,  convicted  of  an  assault  with  intent  to  com- 
mit murder,  appeals.    Keversed. 

J.  E.  Hawkins,  for  the  appellant. 

James  F.  McElroy,  John  B.  Uart,  and  Walter  S.  Fulton,  for 

the  State. 

D IX BAR,  J.  The  appellant  was  tried  upon  the  following 
inforiiiiition: 

''William  Young  is  hereby  accused  by  James  F.  McElroy, 
Prosfcuting  Attorney  in  and  for  King  County,  State  of  Wash- 
ington, and  in  the  name  of  and  by  the  authority  of  said  State 
of  Washington,  and  on  oath,  by  this  information,  of  the  crime 
of  an  assault  to  commit  the  crime  if  murder,  committed  as  fol- 
lows, to-wit: 

''lie,  the  said  William  Young,  in  the  County  of  King,  State 
of  Washington,  on  tho  23d  day  of  May,  A.  D.  1899,  willfully, 
unlawfully,  purposely,  and  feloniously,  and  of  his  premeditated 
and  deliberate  malice,  with  intent  to  kill  and  murder  one  Frank 
Johnson,  did  make  an  assault  in  and  upon  the  person  of  the  said 
Frank  Johnson  with  a  deadly  weapon,  to-wit,  a  razor,  then  and 
there  hold  in  the  hand  of  said  Young,  and  with  which  he  then 
and  there  struck,  beat,  cut,  and  wounded  the  person  of  the  said 

For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


'i  ^'  t   -: -' 

■•  '<  V  n: 

(mm 


11 


]1 


94 


AMERICAN  CRIMINAL  REPORTS. 


\ru 


II :; 


Frank  Johnson,  with  the  intent  aforeaaid;  no  considerable 
provocation  appearing  therefor," — and  was  convicted  of  an  as- 
sault with  intent  to  commit  murder.  The  court  instructed  the 
jury  that  under  the  information  they  could  find  the  defendant 
guilty  of  assault  with  intent  to  commit  murder,  or  of  assault 
and  battery,  or  of  simple  assault,  but  refused  to  instruct,  al- 
ll)oui>li  requested  by  the  Prosscuting  Attorney  so  to  do,  tliat 
they  could  find  him  guilty  of  an  assault  with  a  deadly  weapon 
with  intent  to  do  bodily  harm.  The  refusal  of  the  court  to  give 
this  instruction  is  alleged  here  as  error.  We  think  it  was  error, 
iind  prejudicial  to  the  defendant.  It  is  true  that  in  State  v, 
Acklcs,  8  Wash.  462,  30  Pac.  597,  we  held  that  under  the  in- 
formation in  that  case  it  was  not  competent  for  the  jury  to  re- 
tuni  a  verdict  of  guilty  of  assault  with  a  deadly  weapon  with 
intent  to  do  bodily  harm,  but  for  the  reason  that  the  lesser 
crime  was  not  described  in  the  information ;  their  being  no  alle- 
gation that  the  assault  was  without  considerable  provocation, 
or  that  it  was  the  impulse  of  a  willful,  abandoned,  or  malig- 
nant heart.  "The  accused  in  criminal  prosecutions,"  said  the 
court  in  that  case,  "has  a  constitutional  right  to  be  apprised  of 
the  nature  and  cause  of  the  accusation  against  him ;  *  *  * 
and  this  can  only  be  made  known  by  setting  forth  in  the  indict- 
ment or  information  every  fact  constituting  an  element  of  the 
offense  charged." 

Under  our  statute  (Bal.  code  §7058),  an  assault  with  a  deadly 
weapon,  with  intent  to  inflict  upon  the  person  of  another  a  bod- 
ily injury,  is  made  a  felony  only  upon  the  express  condition 
that  the  assault  is  without  considerable  provocation,  or  where 
the  circumstances  of  the  assault  show  a  willful,  malignant,  and 
abandoned  heart;  and,  when  an  act  is  punishable  in  a  particu- 
lar manner  under  certain  conditions,  these  conditions  must  l)o 
set  forth,  so  as  to  show  that  the  act  is  punishable.  But  the 
information  in  this  case  meets  all  the  obJQctions  urged  by  the 
court  in  the  case  cited.  It  is  alleged  that  the  assault  was  made 
in  the  manner  and  form  stated,  no  considerable  provocation  ap- 
pearing therefor;  and  as  the  statute  is  in  the  alternative,  so 
far  as  the  conditions  mentioned  (viz.,  no  considerable  provoca- 
tion appearing,  or  that  it  was  the  impulse  of  a  willful,  aban- 
doned and  malignant  heart)  are  concerned,  the  statement  of 
the  existence  of  either  was  sufficient. 


STATE  V.  YOUNG. 


93 


The  only  otlier  question  presented  is  whethrr  the  informn- 
tioii  sutHcit'iitly  describes  the  ott'ense  of  an  assault  with  a  deadly 
woiii)on  with  intent  to  do  bodily  harm.  There  is  no  question 
but  that  the  weapon  is  sufficiently  described,  and  the  argumeiii; 
that  the  allegation  "with  intent  to  kill  and  murder"  is  an 
equivnlent  allegation,  and  has  included  within  it  the  allega- 
tiuri  "to  inflict  bodily  injury,"  is  not  only  in  consonance  with 
coiiunun  sense,  but  is  8Ui)ported  by  imiversal  authority.  In 
fact,  no  other  conclusion  could  be  reached  without  reversing 
the  laws  of  nature.  It  is  not  necessary  to  use  any  particular 
form  of  words,  but  a  defendant  may  bo  found  guilty  of  any 
offense  necessarily  included  within  the  crime  charged.  Slate, 
V.  Dohn,  17  Wash.  4!)5),  50  Pac.  472;  1  Bish.  Cr.  Proc.  G12; 
10  Am.  &  Eng.  Enc.  Law,  577;  Tulhj  v.  People,  07  N.  Y.  15; 
Whitman  v.  State,  17  Neb.  224,  22  N.  W.  459. 

Section  1243,  Code  Proc.,  provides  that  "words  used  in 
a  statute  to  define  a  crime  need  not  be  strictly  pursued  in  the 
indiftmcjit  or  information,  but  other  words,  conveying  the 
same  meaning,  may  be  used."  It  is  well  settled  that  an  indict- 
ment for  a  higher  offense  will  sustain  a  conviction  of  a  lower 
offense  included  in  the  higher,  and  it  is  not  important  whether 
the  greater  offense  charged  be  statutory  or  common  law,  pro- 
vided it  necessarily  includes  the  crime  of  which  the  defendant 
has  been  found  guilty.    2  Enc.  PI.  &  Prac.  856. 

But  this  question  is  j)ut  beyond  peradventure  by  our  own 
statutes.  Section  6955,  Ballinger's  Code,  provides  that  "upon 
an  indictment  or  information  for  an  offense  consisting  of  differ- 
ent degrees,  the  jury  may  find  the  defendant  not  guilty  of  the 
degree  charged  in  the  indictment  or  information,  and  guilty 
of  any  degree  inferior  thereto";  and  section  6956  provides  that 
"in  all  other  eases  the  defendant  may  be  found  guilty  of  an 
offense  the  commission  of  which  is  necessarily  included  within 
that  with  which  he  is  charged  in  the  indictment  or  informa- 
tion." Inasmuch,  then,  as  the  law  gives  the  defendant  the 
unqualified  right  to  have  the  inferior  degree  passed  upon  by 
the  jury,  it  is  not  within  the  province  of  the  court  to  say  that 
the  defendant  was  not  prejudiced  by  the  refusal  of  the  court 
to  submit  that  phase  of  the  case  to  the  jury,  or  to  speculate 
upon  probable  results  in  the  absence  of  such  instructions.  If 
there  is  even  the  slightest  evidence  that  the  defendant  may 


;  p    5  I  ( 


- 


Vi 


t      1 


I      ( 


96 


AMERICAN  CUIMINAL  REPORTS. 


hnvo  fniiiiiiittcd  the  degree  of  the  oiTonse  inlVrior  to  nml  in- 
cIikIimI  ill  tilt'  one  cliiirged,  the  law  of  aueh  inferior  degree  ought 
to  be  given.  2  Kne.  IM.  &  rrae.  855,  and  cases  cited;  Hall  c. 
rcoph',  47  .Mifh.  0;jO  (11  X.  W.  414)  ;  Mure  v.  Stale,  33  Tex. 
Cr.  App.  yo(!  (20  S.  W.  403) ;  iVo/^/c  v.  Watson,  125  Cah  312 
(57  Tac.  1071) ;  2  liish.  Cr.  Troc.  (13;  Slate  v.  Scheie,  52  luwu 
008  (3  X.  W.  032);  West  v.  Tcrrilonj  (Ariz.)  30  Pac.  207; 
State  V.  De  Lnncij,  2S  J.a.  Ann.  134;  Pcoidc  v.  DaviiLson,  .'» 
Cui.  133;  People  v.  Abbott,  1)7  .Mich.  4S4  (50  X.  W.  802)  (37 
Am.  St.  Hop.  300). 

It  is  ci'iieeded  hy  the  respondent  that,  under  llie  great  tveight 
of  autliority,  such  a  verdict  can  be  returned  where  the  indict- 
ment 111-  information  and  evidence  justify  it.  But  it  is  contend- 
ed that  in  tiiis  ca!<e  tlic  tcstinidny  prechnU'S  a  verdict  for  the 
3ov.(r  crime.  We  do  not  so  r<'ad  the  record.  The  testimony  wmm 
conllictiiig,  and,  if  tlie  jury  l)elieved  the  testimony  of  the  wit- 
neases  for  the  defense,  it  would  have  been  j)erfectly  justified  iii 
bringing  in  a  verdict  for  a  lower  degree  than  the  greatest  crime 
charged  in  the  information. 

Reversed. 

Goituox,  C,  J.,  and  Fullerton  and  Reavis,  JJ.,  concur. 

NoTi.s  (by  J.  F.  G.). — In  the  fineness  of  technical  reasoning  It  may 
be  contended  that  th.?  information  did  not  contain  any  direct  aver- 
meat  cf  a  specific  intention  to  inflict  a  serio.:;s  bodily  Injury.  Doubt- 
less, the  statute  defining  that  offense  was  designed  to  cover  only  cases 
wliere  deadly  weapons  are  used  with  a  malicious  design  to  Inflict  a 
great  bodily  injury  cr  lastins  disability,  but  not  to  result  In  death; 
but  rules  of  pleading  are  designed  to  protect  the  parties  In  their  lawful 
rights,  and  to  assist  in  attaining  justice.  At  common  law  they  were  lh3 
result  of  judicial  experience  and  were  modified  according  to  the  log- 
ical demands  of  justice. 

It  might  have  been  better,  In  the  present  Instance,  for  a  second 
count  to  have  been  added,  specifically  alleging  an  Intention  to  inlllct 
a  terious  bodily  injury;  but  if  the  charge  in  the  information  was  true: 
that  the  defendant  with  premeditated  and  deliberate  malice  "with  in- 
tent to  kill  and  murder,"  made  an  assault  upon  one  Frank  Johnson, 
with  a  razor,  "and  with  which  he  then  and  there  struck,  beat,  cut,  and 
wounded  the  said  Frank  Johnson  .  .  ,  with  the  Intent  aforesaid," 
there  necessarily  exist  in  the  defendant's  mind  an  Intention  to  Inflict 
a  serious  bodily  Injury,  as  the  means  of  producing  death. 

While  in  the  crime  of  assault  with  Intent  to  commit  murder,  t!:e 
specific  and  essential  intention  Is  to  destroy  life,  and  not  to  simply 
Inflict  a  lasting  bodily  Injury,  to  cause  pain  and  suffering,  was  it  not 
better  In  the  present  Instance,  to  hold  as  the  Court  did,  that  the  in- 


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lu  Tex.  . 

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. 

ApilliKI 

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drawn;    ( 

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Offen.-ics. 

citation,  ; 

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STATE  V.  Y()L'\0. 


97 


fornintlon  also  substantlnlly  eharKcd  an  aasiiult  with  a  deadly  weapon, 
Willi  liiiiiit  to  Indict  a  bodily  injury,  than  to  exclude  such  offense  from 
the  coiishkration  of  the  jury?  The  Jury  evidently  believed  the  de- 
fendant Kullty  of  a  higher  grndo  than  assault  and  battery,  and  If 
given  II  wider  range  in  framing  a  verdict,  the  Jury  might  have  been 
equally  will  satisfied,  that  the  offense  was  not  assault  with  intent  to 
commit,  murder. 

The  policy  of  the  law  favors  a  correct  verdict,  and  that  the  'lefend- 
nnt  ylionld  not  be  found  guilty  of  any  higher  offense  than  that  sus- 
tained beyond  all  reasonable  doubt  by  the  evidence.  Even  thougu 
the  iitloi  ncya  on  each  side  of  the  case,  in  their  ardent  zeal,  may  insist 
that  I'.io  verdict  nuiat  be  for  the  highest  grade  or  none;  yet  it  is  the 
duty  of  the  court  to  properly  advise  the  jury  as  to  the  law  pertaining 
to  the  case;  and  it  is  the  duty  of  the  jury  to  render  a  verdict  in  accord- 
nncc  with  iho  law  and  the  evidence;  even  though  such  verdict  be  con- 
trary to  tliu  mutual  demands  of  opposing  counsel. 

The  (iriicml  rule. — It  Is  an  axionintic  rule  of  law,  that  an  indict- 
ment cliam'iiig  any  offense  which  includes  one  or  more  lower  or  in- 
ferior giadts,  is  not  only  an  Indictment  for  the  higher,  but  for  each 
of  the  ,owor  grades  necessarily  included  in  the  graver  charge;  and 
that  tlio  plea  of  not  guilty  puts  at  Issue  the  accusation  for  each  of  the 
ineluded  ciinies. 

In  Priiuliville  V.  People,  42  111.  217,  the  Court  says: 

"While  to  convict  of  the  higher  offense  the  prosecutor  must  prove 
every  lad  neceisary  to  constitute  the  smaller  offense,  together  with 
the  additional  facts  which  make  it  the  higher  offensje,  before  ho  can 
ha'  3  a  ( onvictlon,  then  the  Jury,  if  the  facts  warrant  It,  may  convict 
of  the  less  offcnae." 

In  the  same  case  Chitty's  Criminal  Law,  Vol.  1,  page  CSS,  is  cited 
and  quoted,  of  which  note  the  following: 

"When  the  accusation  Includes  an  offense  of  inferior  degree,  the 
jury  may  discharge  the  defendant  of  the  higher  crime  and  convict  him 
of  the  less  atrocious."— See  also,  14  Cent.  Dig.  2720-2732. 

The  defendant  is  entitled  to  the  benefit  of  any  reasonable  doubt  as 
to  the  grade  of  the  offense;  (Jackson  v.  State,  91  Ga.  271,  18  S.  E.  Rep. 
29S,  41  Am.  St.  Rep.  22;  Jackson  v.  Com.,  14  S.  W.  Rep.  077;  State  v. 
Anderson,  80  Mo.  309;  Abbott  v.  State,  80  N.  Y.  400;  Eanes  v.  State, 
lu  Tex.  App.  421),  and  it  is  the  duty  of  the  Court  to  so  charge  the 
Jury;  t<tatc  v.  Neis,  08  Iowa,  409,   27  N.  W.  Rep.  400. 

Applimtiun  of  the  rule. — Some  very  close  distinctions  have  been 
drawn;  {Alyea  V.  State,  present  volume  page  101)  which  we  will  re- 
view in  our  next  volume,  wher  treating  of  the  subject  of  Grades  of 
Offenfics.  At  tlie  present  we  will  make  a  few  suggestions,  without 
citation,  and  suggest  a  few  forms  of  Instructions. 

Rape  includes,  assault  with  intent  to  commit  rape,  assault  and  bat- 
tery and  assault. — Assault  with  Intent  to  commit  rape  Includes  as- 
sault; but  not  always  a  battery.  If  the  Indictment  charges  a  battery, 
then  assault  and  battery  Is  a  part  of  the  charge. — Robbery,  being  lar- 
ceny by  force  or  fear.  Includes  larceny  and  assault;  and  may  Include 

Vol.  XIII— 7 


1     '  lU 

15  1  'f  m 


\U   1: 


:,?     ^ 


\:  .!| 


98 


AMERICAN  CRIMINAL  REPORTS. 


f.ssault  and  battery  If  physical  force  Is  charged  In  the  Indictment— 
As  to  assault  with  intent  to  commit  murder,  the  same  general  rulei 
applies. 

Forms  for  instructions.— In  the  Criminal  Court  of  Cook  County  (Chi- 
cago), a  form  for  indictment  has  been  used  for  many  years.  The  flist 
count  of  which  charges  assault  with  intent  to  commit  murder;  the 
second  count  charges  an  assault  with  a  speciilc  weapon,  to  do  a  bodily 
Injury.  The  third  count  Is  the  same  as  the  second,  except  It  does  not 
particularly  describe  the  wcpyon. 

The  wViter  has,  from  ti?^ie  to  time,  prepared  instructions  to  fit  this 
form  of  indictment,  which  have  met  with  general  approval;  and  with 
modidcations  may  be  of  advantage  to  the  reader.  They  are  substan- 
tially as  follows: 

The  Court  Instructs  the  jury  that  under  the  indictment  the  jury 
may  find  any  one  of  the  following  verdicts  as  may  be  justified  by  the 
evidence:  ^ 

Guilty  of  assault  with  Intent  to  commit  murder, 
or 

Guilty  of  an  assault  with  a  deadly  weapon.  Instrument   or  other 
thing,  with  intent  to  do  a  bodily  Injury, 
or 

Guilty  of  assault 
or 

Not  guilty. 

If  the  jury  find  from  the  evidence  beyond  all  reasonable  doubt  that 
the  defendant  is  guilty,  but  entertain  a  reasonable  doubt  as  to  the 
grade  of  the  offense,  then  the  verdict  cannot  be  cf  any  grade  to  whi:h 
such  doubt  exists,  but  it  the  jury  from  the  evidence,  entertain  a  rea 
sonable  doubt  as  to  whether  or  not,  the  defendant  Is  guilty  of  a:iy 
offense,  then  the  verdict  must  be,  not  guilty. 

The  Court  Instructs  the  jury,  that  the  jury  may  find  the  defenlant 
guilty  of  any  of  the  following  offenses;  if  such  verdict  Is  sustained  by 
the  evidence  beyond  all  reasonable  doubt: 

1st.  Guilty  of  an  assault  with  Intent  to  commit  murder. 

2nd.  Guilty  of  an  assault  with  a  deadly  weapon  with  intent  to  in- 
flict upon  the  person  of  another  a  bodily  injury  (where  either  no  con- 
siderable provocation  or  where  the  circumstances  of  the  assault  show 
an  abandoned  and  malignant  heart), 
or 

3rd.  Guilty  of  an  assault 

And  the  court  further  instructs  the  Jury: — that  If  the  jury  find 
from  the  evidence,  beyond  all  reasonable  doubt,  that  the  defendant  did 
commit  unlawful  assault  as  charged  In  the  Indictment: — but  from 
the  evidence  entertain  a  reasonable  doubt  as  to  the  grade  of  such  as- 
sault, then,  the  defendant  must  have  the  full  benefit  of  buch  doubt;— 
and  the  verdict  cannot  be  of  any  higher  grade  of  assault,  than  such, 
of  which  the  Jury  from  the  evidence  entertain  no  reasonable  doubt;— 
but  if  from  the  evidence  the  jury  entertain  a  reasonable  doubt  as  to 


f 


STATE  V.  YOUNG, 


99 


whether  or  not  the  defendant  is  guilty  of  any  assault, — then  the  verdict 
must  be,  not  guilty. 

The  Court  instructs  the  jury  as  a  matter  of  law,  that  under  the  In- 
(lictinent  in  this  case,  the  jury  cannot  find  the  defendant  guilty  of 
assault  with  intent  to  commit  murder,  unless  the  jury  find  from  the 
evidence,  beyond  all  reasonable  doubt,  that  the  defendant  did  commit 
an  assault  as  charged  in  the  indictment  and  that: 

First,  that  such  assault  was  committed  with  that  degree  of  premedi- 
tation, deliberation  and  malice,  that  had  the  person  so  assaulted  died 
Irom  the  effects  thereof,  the  defendant  would  have  been  guilty  of  the 
crime  of  murder. 

Eecond,  That  the  defendant  committed  such  assault  with  the  actual 
desire  to  destroy  life. 

To  sustain  a  charge  of  assault  with  intent  to  commit  murder,  it  is 
not  sufficient  to  show  that  an  assault  was  maiie  with  the  intention  of 
destroying  life,  and  had  such  life  been  destroyed  that  the  offense,  if 
any,  would  have  been  manslaughter;  but  before  a  verdict  of  guilty 
of  assault  with  intent  to  commit  murder  can  be  rendered,  the  jury 
must  be  satisfied  from  the  evidence  beyond  all  reasonable  doubt,  that 
such  alleged  assault  was  made  with  the  actual  intention  to  destroy 
life,  and  had  such  life  been  destroyed,  the  offense,  if  any,  would  have 
Lecn  murder. —  (Assault  to  commit  manslaughter  no  crime  in  Illinois. — 
Moore  v.  People,  140  111.  COO,  35  N.  E.  Rep.  106,  11  Am.  Grim.  Rep.  156- 
lo8.) 

In  order  to  constitute  the  crime  of  assault  with  intent  to  commit 
murder,  there  must  be  an  actual  desire  to  destroy  life.  It  is  not  suf- 
r.cient  for  the  evidence  to  show  that  an  assault  was  made,  with  that 
degree  of  premeditation,  deliberation  and  malice,  that  had  death  en- 
sued, the  offense,  if  any,  would  have  been  murder;  but  before  any  ver- 
dict of  guilty  of  assault  with  intent  to  commit  murder  can  be  ren- 
dered, it  must  be  shown  by  the  evidence  beyond  all  reasonable  doubt, 
that  the  defendant  actually  desired  to  destroy  the  life  of  the  person 
alleged  to  have  been  assaulted.  (See  notes — 11  Am.  Grim.  Rep.  155- 
150.) 

Before  the  jury  can  find  the  defendant  guilty  of  assault  with  intent 
to  commit  murder,  the  jury  must  be  satisfied  from  the  evidence  be- 
yond all  reasonable  doubt,  not  only  that  the  defendant  made  an  un- 
lawful assault  upon '■ ,  with  that  degree  of  deliberation, 

and  malice  aforethought,  that  had  the  said  been  thereby 

killed,  such  killing  would  have  been  murder,  but  the  jury  must  also 
I  e  satisfied  beyond  all  r  sonable  doubt  from  the  evidence,  that  such 
allegpd  assault  was  made  with  the  actual  desire  and  intention  to  de- 
stroy the  life  of  the  said . 

If  the  jury  find  beyond  all  reasonable  doubt  that  the  defendant  as- 
saulted   with  intent  to  liill  the  said and  are 

sutisllcd  that  had  death  ensued  that  the  offense  would  amount  to 
manslaughter,  but  have  a  reasonable  doubt  as  to  whether  or  not  such 
killing  would  have  been  murder,  then  the  jury  cannct  find  the  de- 
fendant guilty  of  assault  with  intent  to  commit  murder. 


I'll 


lilli'i 


11 


f  i 


r^T 


:  & 


lil 

'IB  ^inin 

S'-i' 

Ili'ltM 

f''i' 

^ll'in 

ij; 

ii 

1 

Si 

100 


AMERICAN  CRIMINAL  REPORTS. 


The  second  and  third  counts  of  the  Indictment  are  based  on  section 
25  of  the  Criminal  Code,  wliich  reads  as  follows: 

"An  assault  with  a  deadly  weapon,  instrument  or  other  thing  with 
an  intent  to  inflict  upon  the  person  of  another,  a  bodily  injury,  whco 
no  considerable  provocation  appears,  or  where  the  circumstances  of 
the  assault  show  an  abandoned  and  malignant  heart,  shall  subject  the 
oitender  to  a  fine  not  exceeding  $1,000  nor  less  than  $25,  or  impris- 
onment in  the  County  Jail  for  a  period  not  exceeding  one  year,  cr 
both  in  the  discretion  of  the  court." 

It  is  not  every  unlawful  assault  with  a  deadly  weapon,  mr.de  wiili 
intent  to  inflict  a  bodily  injury,  that  comes  within  this  section;  ),ut 
to  convict  of  said  offense,  it  must  not  only  be  proven,  beyond  all  rea- 
sonable doubt,  that  an  unlawful  assault  with  a  deadly  weapon,  instru- 
ment or  other  thing,  with  an  intent  to  inflict  a  bodily  injury  has  been 
made;  but  it  must  also  be  proven  beyond  all  reasonable  doubt,  that 
such  assault  was  made  "without  considerable  provocation,"  or  tl.at 
"the  circumstances  of  the  assault  show  an  abandoned  and  malignant 
heart." 

The  Court  Instructs  the  jury  as  a  matter  of  law,  that  a  deaiily 
weapon,  instrument  or  other  thing,  mentioned  in  section  25  of  tho 
Criminal  Code,  does  not  mean  such  weapon,  instrument  or  other 
thing  as  might  under  some  circumstances  produce  deatli;  but  it  refers 
to  such  weapon,  instrument  or  other  thing,  which  of  its  own  natuio, 
or  from  the  use  applied  would  naturally  produce  dpath. 

The  words  "bodily  injury,"  as  used  in  section  2^  of  the  Criminal 
Code,  should  be  considered  in  a  limited  sense.  They  do  not  include* 
every  slight  injury,  or  that  which  may  simply  cause  a  temi)orary 
l)ain,  but  should  be  considered  as  meaning  an  injury  of  a  more  seri- 
ous nature,  such  as  would  to  seme  material  degree  inpair  or  crii)ple 
a  person;  or  such  as  would  to  some  material  degree  lessen  or  impair 
one's  mental  or  physical  faculties,  or  which  would  deface,  deform, 
scar  or  render  less  comely  one's  personal  appearance.  Such  bodily 
Injury  would  not  necessarily  be  a  permanent  injury;  but  it  should  be 
a  serious  injury. 

The  offense  of  assault  with  a  deadly  weapon,  with  intent  to  inflict  a 
bodily  injury,  is  not  intended  to  cover  that  kind  of  cases,  which 
would  ordinarily  be  included  in  assault  and  assault  and  battery;  or  in 
the  common  and  ordinary  fights  or  affrays  between  individuals;  tnit 
that  class  of  assaults  which  are  more  malignant,  and  of  a  more  si  ri- 
ous  character,  wherein  a  deadly  weaiwn  is  used,  with  the  malicicis 
design  to  do  a  serious  bodily  Injury,  to  the  person  assaulted.  Shru'.d 
the  jury  in  this  case  be  satisfied  beyond  all  reasonable  doubt  tiat 
the  defendant  made  the  assault  as  charged,  but  still  if  the  jury  enter- 
tain a  reasonable  doubt  as  to  whether  or  not  such  assault  was  ni;:  !c 
with  that  degree  of  malignancy  and  intent,  as  should  contra  dis.ii 
guish  it  from  the  ordinary  assaults  and  assaults  and  batteries,  tii;':) 
the  jury  should  ve  the  defendant  the  full  benefit  of  such  reasonable 
doubt. 


Assault 


Error 

Ju(li>o. 

L'ruv 
KovcrsedJ 


For  easel 
tills  voluniT 


ALYEA  V.  STATE. 


101 


The  jury  is  instructed  that  sections  20,  21  and  22  of  the  Criminal 
Code  of  liliiiois  read  as  follows: 

Section  20.  "An  assault  is  an  unlawful  attempt  coupled  with  a 
present  ability  to  commit  a  violent  injury  on  the  person  of  another." 

Section  21.    "Assault  and  battery  is  the  unlawful  beating  of  another." 

Ee;tion  22.  "Whoever  shall  be  guilty  of  an  assault  or  an  assault 
and  battery,  shall  be  fined  not  less  than  $3  nor  more  than  $100." 

And  tlie  court  further  instructs  the  jury  that  the  foregoing  sections 
pertaining  to  assault  and  assault  and  battery  are  intended  to  cover 
all  ordinary  physical  encounters  between  individuals  even  though  ac- 
ccnipanied  with  great  violence  and  severe  punishment,  where  such 
assault  is  not  made  with  the  intention  of  committing  murder  or  other 
felony,  nor  made  with  a  deadly  weapon,  instrument  or  other  thing 
with  intent  to  inllict  a  serious  bodily  injury. 

And  the  court  further  instructs  the  jury  that  if  they  find  from  the 
evidence,  beyond  all  reasonable  doubt,  that  the  defendant  committed 
an  ansault  as  charged  in  the  indictment,  but  entertain  a  reasonable 
douLl  from  the  evidence,  as  to  whether  or  net,  the  assault  might  have 
been  a  siniide  assault,  or  of  a  higher  grade  of  offense,  then  the  verdict 
should  simply  find  the  defendant  guilty  of  an  assault. 


Alyea  v.  State. 

62  Neb.  145—86  N.  W.  Rep.  1066. 

Decided  June  19,  1901.   , 

Assault  with  Intent — Conviction,  Assault  anb  Battery — Informa- 
tion— Grades  of  the  Offense. 

1.  An  information  for  an  assault  with  intent  to  commit  great  bodily 

injury,  framed  under  section  17b  of  the  Criminal  Code,  is  suffi- 
cient where  the  offense  is  charged  in  the  language  of  the  statute, 
wiiliout  slating  the  means  with  which  the  assault  was  committed. 

2.  A  conviction  of  an  assault  and  battery  is  improper  under  an  in- 

formation charging  an  assault  with  intent  to  inflict  great  bodily 
injury,  where  the  averments  therein  do  not  include  a  battery. 
(Syllabus  by  the  Court.) 

Error  to  District  Court,  Madison  County;  Hon.  Cones, 
Judge. 

Leroy  Alyea,  convicted  of  assault  and  battery,  brings  error. 
Eoverscd. 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  In 

this  volume. 


102 


AMERICAN  CRIMINAL  REPORTS. 


■1'  I. 


':    ii 


ii  via 


1'   V4] 


Allen  £  Eeed,  for  plaintiff  in  error. 

F.  N.  Prout,  Attorney  General,  and  Norris  Brown,  Dei)uty 
Attorney  General,  for  the  State. 

XoRVAL,  C.  J.  Leroy  Alyea  was  tried  upon  an  information 
charging  him  with  making  a  felonious  assault  upon  one  Pcli  r 
F.  Sullivan,  with  intent  to  inflict  great  bodily  injury,  convicted 
of  an  assault  and  battery,  and  sentenced  to  the  county  jail  fur 
a  period  of  30  days. 

The  first  assignment  of  error  challenges  the  sufficiency  of  tlio 
information,  the  charging  part  of  which  is  as  follows:  "Tliat 
the  defendant,  ].eroy  Alyea,  then  and  there  being  in  km  id 
county  and  State,  on  or  about  the  7th  day  of  July,  in  the  year 
of  our  Lord  nineteen  hundred,  in  and  upon  Peter  F.  Sullivan, 
then  and  there  being,  unlawfully  and  maliciously  did  make  an 
assault,  with  intent  him,  the  said  Leroy  Alyea,  then  and  tliei-L' 
to  inflict  great  bodily  injury  upon  him,  the  said  Peter  F.  Sulli- 
van."- The  informatidn  was  framed  under  section  17b  of  tlio 
Criminal  Code,  and  charges  the  offense  in  the  language  thercuf. 
But  it  is  strenuously  insisted  that  this  is  insuflicient,  since  the 
act  creating  the  offengo  designates  no  particular  fact  or  facts 
in  defining  the  offense.  Further,  the  particular  facts  consti- 
tuting the  assault  should  have  been  set  forth  in  the  informa- 
tion. The  precise  question  now  urged  upon  our  attention  was 
passed  upon  adversely  to  the  contention  of  the  learned  and  di-^- 
tinguished  counsel  for  the  prisoner  in  Murphy  v.  State,  43  Xcb. 
38,^ Gl  X.  W.  4!)1,  and  Smith  v.  State,  .58  Xeb.  531,  78  N.  W. 
1059.  It  was  ruled  in  those  cases  that  in  a  prosecution  under 
section  17b  of  the  Criminal  Code  the  information  is  sufficient 
which  charges  the  offense  in  the  language  of  the  statute.  Th*^ 
information  in  the  case  at  bar  follows  the  wording  of  the  stat- 
ute, and  under  those  decisions,  whicli  we  adhere  to,  is  sufficient 
in  substance. 

It  is  next  urged  that  the  crime  of  assault  and  battery,  nf 
which  the  defendant  was  convicted,  is  not  embraced  or  included 
in  the  offense  charged  in  the  information.  This,  we  think,  is 
true.  The  information  alleges  an  assault,  but  not  a  battery.  If 
the  latter  had  lx>en  averred  in  the  information,  the  charge  would 
have  been  sufficiently  broad  to  have  sustained  a  conviction  for 
an  assault  and  battery.    Mulloy  v.  State,  58  Neb.  204,  78  X. 


CADDELL  V.  STATE. 


103 


* 


\V.  525,  But,  as  the  information  contains  no  averment  of  a 
battery,  the  conviction  cannot  stand.  Turner  v.  Muskegon 
(]ilich.)  50  N.  W.  310.  The  judgment  is  reversed,  "nd  the 
cause  remanded  for  further  proceedings. 

iTe versed  and  remanded. 


Cadbkli^  v.  State. 


Texas  Court  of  Criminal  Appeals— 72  S.  W.  Rep.  1015. 

Decided  Feb.  18,  1903. 

AssAt'i-T  WITH   INTKNT — Gkade  OF  OiTEXSE — Couvt  may  reject  higher 
vhargc,  and  submit  to  the  jury  as  to  lower  grades — Practice. 

1.  The  record  not  containing  the  evidence,  the  overruling  of  a  motion 

in  the  Court  below,  to  strike  out  all  of  the  evidence  because  of 
insufficiency,  cannot  be  reviewed. 

2.  On  indictment  for  assault  with  intent  to  commit  rape,  the  Court 

may  hold  the  evidence  insufficient  as  to  tliat  charge,  and  submit 
the  matter  as  a  charge  of  aggravated  assault  or  simple  assault. 

.\])poal  from  the  District  Court,  Eastland  County;  Hon.  N. 
Ik.  Liiulsoy,  Judge. 
W.    A.    Caddoll,    convicted    of    simple    assault,    appeals. 

Aflirnied. 

•/.  T.  llammons,  for  the  appellant. 

Howard  Martin,  Assistant  Attorney  General,  for  the  State. 

IIkxdkhsox,  J.  Appellnnt  Avas  convicted  of  simple  assault, 
and  titled  $20;  hence  this  api)eal. 

There  is  no  statement  of  facts  in  the  record.  After  the  evi- 
dence had  lx:en  adduced,  ajijicdlant  moved  to  strike  out  all  the 
ovidciieo  because  it  was  insuHicient  in  law,  under  the  indict- 
ment, for  any  purpose.  This  was  refused.  We  are  not  told 
what  tlie  evidence  Avas,  and,  in  the  absence  of  facts,  we  cannot 
determine  this  question.  Consequently  this  matter  is  not  in 
s.liaj)e  to  l)e  revised. 

In  a  motion,  which  appellant  terms:  "a  motion  in  arrest  of 


t     ) 


111 


, 

MmM 

'H^^-^i 

".* 

ill 

) 

■HI 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


■  i.'l 


u.f, 


104 


AMERICAN  CRIMINAL  REPORTS. 


iiidgmcnt,"  ho  recites  as  follows :  "After  the  court  had  strick- 
en out  and  eliminated  all  the  evidence  in  the  charge  to  the 
jury  tending  to  prove  the  solo  and  only  allegation  in  the  indiet- 
jjiPiit — that  is,  assault  with  intent  to  rape — the  court  erred  hy 
permitting  the  case  to  go  to  the  jury  to  determine  appellant's 
guilt  as  to  a  simple  or  aggravated  assault,  because,  appellant 
says  the  coio'  '  ^  no  jurisdiction,  and  erred  in  refusing,  on 
motion,  to  ::■■'■■  ■/'it  all  the  "evidence."  It  was  competent, 
under  the  iiiu;..iiic.jL  in  this  case,  for  the  jury  to  find  appel- 
lant Jiiiilty  of  an  aggi  avated  or  pimple  assault ;  and  because  the 
evidence  diu  not  -nstaiii  '"'•o  aUegation  of  assault  to  rape  it  did 
not  follow  that  th(!  eonrt  ui<'  no.'  have  jurisdiction  to  submit  the 
case  to  the  jury  under  the  indictment  on  aggTavated  or  simjilo 
assault.  Consequently  the  court  did  not  err  in  refusing  to 
arrest  the  judgment. 

There  being  no  errors  in  the  record,  the  judgment  is  affirmed. 


Andersox  v.  State. 

Texas— Court  of  Criminal  Appeals— 07  S.  W.  Rep.  110. 

Decided  Feb.  12,  1902. 

Aggravated  Assault — Piuncipal:    Previous   cumbination   renders  aU 

liable  as  p7-incipals. 

A  previous  agreement  being  formed  to  assault  another,  the  acrused 
and  several  others  boarded  a  train;  the  assault  being  committed 
without  physical  assistance  of,  but  in  the  presence  of  accused; 
after  which  at  the  next  station  they  all  left  together  riding  back 
in  a  carriage — held,  that  the  accused  was  a  principal  and  guilty 
-     of  the  offense. 

Appeal  from  Collin  County  Court;  Hon.  J.  H.  Faulkner, 
Judge. 

Jim  Anderson,  convicted  of  aggravated  assault,  appeals. 
AfHrmed. 

Garnctt,  Smith  <£•  Merrill,  for  the  appellant. 

Robert  A.  John,  Assistant  Attorney  General,  for  the  State. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  iu 
this  volume. 


■   ^ 


ANDERSON  V.  STATE. 


105 


Davidson,  P.  J.  Appellant  was  convicted  of  an  aggvavated 
assault,  and  his  punishment  assessed  at  a  fine  of  i*'50. 

This  is  a  companion  case  to  those  of  Ycary  v.  Slate,  GG  S.  W. 
1100,  and  McKinney  v.  State,  id.  769  (decided  at  the  present 
teviu).  The  facts  are  the  same  in  the  different  records,  it 
being  the  same  transaction.  The  difference,  if  any,  in  the  tes- 
timony in  this  from  the  other  cases  is  found  in  the  fact  that 
iippellniit  did  not  actually  commit  the  assault.  The  case  is 
one  where  the  parties  comhined  together  for  the  purpose  of 
assaulting  another  pai'ty.  Anderson  was  with  them,  went  with 
them  through  the  enterprise,  left  the  train  with  them,  and  re- 
turned to  his  home.  In  other  words,  the  testimony  throughout 
luakos  him  a  principal  in  the  transaction.  If  the  parties  had 
an  agreement  to  whip  Dial,  or  inflict  personal  injury  upon  him. 
and  they  assemhled  together  for  that  purpose,  hoarded  the  train 
for  that  purpose,  and  executed  it,  Anderson  being  Avith  them, 
knowing  of  their  desig-n,  and  being  present,  etc.,  this  would 
constitute  an  unlaAvful  assembly,  and  the  perpetration  of  the 
assault  in  pursuance  of  that  unlawful  asseiubly  would  make 
defendant  guilty;  and  all  participating,  and  those  who  entered 
into  the  agreement  or  aided  in  it,  would  be  alike  rt\';ponsible. 
A§  stated,  the  testimony  discloses  that  McKinney,  Hinds,  An- 
derson and  Yeary,  and  appellant,  together  boarded  the  train 
for  the  purpose  of  whipping  Dial  -flud  inflicting  upon  him 
injury  and  chastisement;  that  several  of  the  parties  engaged 
actually  in  the  infliction  of  the  injury,  and  at  the  first  station 
on  the  railroad  after  the  infliction  of  the  injury  the  same  par- 
ties, inehuling  appellant,  got  off  the  train,  took  a  hack,  and 
returned  to  the  station  where  they  boarded  the  train  and  where 
tlioy  lived. 

Without  going  into  a  detailed  statement  of  the  occurrences 
from  the  time  they  boarded  the  train  until  they  left  it,  it  is 
sufficient  to  say  that,  if  the  others  are  guilty,  Anderson  is  suffi- 
ciently shown  to  have  been  a  particeps  criminis. 

The  judgment  is  aflfirmed. 


iff? 


m 


A-m 


AMERICAN  CRIMINAL  REPORTS. 

Davis  v.  State. 

81  Miss.— 33  So.  Rep.  286. 

Decided  Nov.  10,  1902, 

Assault  and  Battery:     Corporal  punishment  of  a  convict,  on  a  county 
farm:  when  permissible. 

A  guard  upon  a  county  farm  has  no  authority  to  inflict  corporal  pun- 
ishment on  a  refractory  convict,  under  his  care;  unless  such 
punishment  is  authorized  by  a  rule  or  law  declared  by  the  Board 
of  Supervisors  of  the  County. 

Appeal  from  Circuit  Court,  Copiah  County;  Hon.  Robert 
Powell,  Judge. 

Will  Davis,  convicted  of  assault  and  Lattery,  appeals. 
Affirmed. 

B.  B.  Mayes  for  the  appellant. 

William  Williams,  Assistant  Attorney  General,  for  the  State. 

Terkal,  J.  The  appellant,  a  guard  upon  a  convict  farm, 
whipped  one  of  the  convicts  with  a  plow  line,  and  being  con- 
victed of  assault  ^nd  battery,  he  appeals. 

Upon  the  trial  appellant  claimed  a  right  to  whip  moderate- 
ly a  convict  guilty  of  idle  and  refractory  conduct.  Appelhuit 
produced  evidence  tending  to  prove  that  the  convict  whi]>])cd 
by  him  Avas  refractory  in  a  high  degree.  His  claim,  however, 
was  rejected  by  the  court.  We  approve  the  ruling  of  the  cir- 
cuit judge.  If  county  convicts  can  be  whipped  with  flexible 
or  inflexible  instruments,  or  by  other  methods,  it  can  only  bo 
done  when  the  board  of  supervisors  of  the  county  make  a  rule 
or  law  authorizing  such  subsidiary  punishment.  A  guard  may 
not,  of  his  own  authority,  ijiflict  the  punishment. 

Affirmed. 

Note. — The  above  Is  a  corrected  opinion.  For  the  original,  sco  .'52 
So.  Eep.  922. 


For  cases  in  previous  volumes  on  any  subject,  aee  Table  of  Topics  in 
this  volume. 


li 


' 


(  ^ 


Aetic 
for  pla 


WiLJ 

the  per? 
Knox 
(ho  sani 
When 


PETERS  V.  WHITE. 


107 


Peters  v.  White. 

103  Tenn.  390—53  S.  W.  Rep.  76. 

Decided  November  6,  1899. 

Assault  by  a  Superintendent  of  a  Workhouse  on  a  Prisoner:  Cor- 
poral punishment  not  authorized — Limit  of  punishment — Rights 
of  prisoners — Statute  construed. 

1.  "A  convict  does  not  lose  all  his  rights  of  protection  for  his  person 

by  being  sentenced  to  the  workhouse;  nor  is  his  liberty  to  be 
restrained,  except  so  far  as  is  done  by  the  law  under  the  sentence 
of  the  Court." 

2.  A  statute  which  provides  that  a  prisoner  who  refuses  to  work  or 

becomes  disorderly  may  be  subjected  to  solitary  confinement  and 
fed  on  bread  and  water,  "or  subjected  to  such  other  punishment, 
not  inconsistent  with  humanity  as  may  be  deemed  necessary  by 
the  commissioners  for  the  government  and  control  of  the  pris- 
oner," does  not  authorize  such  powers,  if  any  granted,  to  be  dele- 
gated to  the  superintendent  of  a  workhouse. 

3.  Whipping  as  a  punishment  for  criminal  offenses  being  abolished, 

it  would  be  an  anomaly  to  hold  that  a  prisoner  could  be  so  pun- 
ished at  the  discretion  of  one  man,  "without .  even  the  form  or 
semblance  of  a  trial." 

4.  A  prisoner  has  no  right  to  have  an  adopted  child  kept  with  her  In 

a  workhouse;  but  the  superintendent  has  no  right  to  exact  from 
her  payment  for  the  board  of  such  child. 

5.  Evidence  reviewed;  and  court  holds  there  appears  no  cause  for 

the  punishment  of  the  prisoner;  and  that  a  judgment  of  five 
hundred  dollars  damages  be  sustained. 

Appeal  from  Circuit  Court,  Knox  County ;  Hon.  Joseph  W. 
Sliced,  Judge. 

Action  by  Malissa  White  against  R.  L.  Peters.  Judgment 
for  plaintiff,  and  defendant  appeals.     Affirmed. 

Taylor  if  Culton  and  Clias.  B.  Selhy,  for  appellant.    * 
Qrccn  &  Shields,  for  the  appellee. 

WiMvEs,  J.  This  is  an  action  for  damages  for  injuries  to 
tlic  person.  The  defendant,  Peters,  is  superintendent  of  the 
Knox  county  workhouse,  and  the  plaintiff  was  an  inmate  of 
the  same,  committed  until  she  should  work  out  a  fine  and  costs. 
Wlien  she  was  taken  to  the  workhouse,  she  carried  with  her 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 

this  volume. 


Ml', 


wm%i 


'  ", 


108 


AMERICAN  CRIMINAL  REPORTS. 


M  I 


nn  adopted  child,  some  9  years  old.     She  placed  in  the  hands 
of  IJutlaker,  one  of  the  guards,  a  small  sum  of  money — soino 
$7.50.    After  she  had  been  in  the  workhouse  a  day  or  two,  tho 
t^njjerintendent  told  her  she  would  have  to  send  the  child  awiiy, 
or  pay  l)oard  for  it.     She  refused  to  do  so,  saying  that  she  liad 
offered  the  money  to  the  conmiitting  justice,  and  he  had  given 
it  l)aek  to  her,  and  she  would  not  give  it  up  any  more.     TIkj 
superintendent's  version  is  that  he  told  lier  she  was  talking 
too  niueli,  and  she  replied  that  she  would  talk  as  much  as  she 
pleased,  and  dared  him  to  whip  her,     Iler  version  is,  she  told 
liiiii  she  had  nowhere  to  place  the  child,  and  begged  him  iiDt 
to  Avhip  her,  as  she  was  sick,     lie  called  for  the  "bull  wlii|)," 
and  Avhen  it  was  brought  he  struck  at  the  woman.    She  grai)pl(Hl 
with  hiui  and  forced  him  back,  until  one  of  tlie  guards  ciiinu 
to  his  assistance,  and  together  they  threw  her  upon  the  ilour, 
and   struck  her  several  times — some  six  or  seven — with   tlio 
leather  part  of  the  whip,  she  says,  "upon  her  nakedness."     lie 
denies  this,  however.     It  appears  that  she  was  troubled  with  n 
heart  affection,  and  the  excitement  and  struggle  caused  lier 
to  faint,  and  she  remained  unconscious  for  some  time,  and 
when  iinally  she  regained  consciousness,  after  a  day  or  mure, 
she  was  discharged  from  the  workh<>use,  although  she  had  not 
worked  out  the  line  and  costs.     She  was  sick  for  some  weeka, 
and  unable  to  work.     The  cause  was  tried  before  the  eoiu'l 
and  a  jury,  and  there  was  a  verdict  and  judgment  for  $')()(), 
and  the  defendant  has  ap])ealed,  and  assigned  a  large  number 
of  errors,  which  it  will  not  be  necessary  to  notice  seriatim.    Tho 
appellant  defended  upon  the  ground  that  he  had  general  au- 
thority from  the  workhouse  commission  to  inflict  corporid  pnn- 
ishjuent  for  any  misconduct  or  disorderly  acts  of  the  ininatos. 
Tke  charge  of  the  court  was,  substantially,  that  the  super- 
intendent had  no  authority  to  inflict  c<jrporal  punishment  in 
any  case  unless  it  had  been  investigated  by  the  commission,  and 
directions  given  that  it  should  be  inflicted,  and  how,  and  in 
what  manner,  and  to  what  extent,  it  should  be  done;  and  if  he 
inflicted  corporal  punishment  without  such  specific  order  in 
any  case  it  would  furnish  ground  for  recovery,  and  that  puni- 
tive or  exemplary  damages  might  be  awarded  if  the  conduct  of 
the  superintendent  was  malicious  and  wrongful.     The  court 
refused  to  allow  defendant  to  prove  that  he  had  general  au- 


PETERS  V.  WHITE. 


L09 


.'I'Ui 


thority  or  cHroction  from  the  commissionora  to   inflict  such 
piiiiisliinoiit.     Other  assignnionts   are  mnde  of  minor   imjxjr- 
tiiiKV,  siu'h  as  that  the  verdict  is  excessive,  and  that  the  jury 
AViis  instructed  that,  if  the  punishment  had  a  tendency  to  and 
did  iiiiiivavate  any  physical  trouhle  the  convict  had,  that  mi;>;ht 
be  cdiisidered  in  estimating  the  damages.     The  provision  of 
the  stiitnte  xmder  whicli   the  dc^fenchuit  seeks  to  justify   his 
nction  is  section   7422   of   Shannon's   Compilation,   in    these 
words:     "Any   prisoner  refusing   to  work   or  becoming  dis- 
orderly may  he  confined  in  solitary  confinement  and  fed  on 
bread  and  water,  or  subjected  to  such  other  punishment,  not 
inconsistent  with  humanity,  as  may  bo  deemed  necessary  by 
the  commissioners  for  the  government  and  control  of  the  pris- 
oners.'"   It  is  said  that  this  language  necessarily  implies  that 
the  cnnmiissioners  may  establish  rules  and  regulations,  and  wo 
think  this  is  so  as  to  the  general  conduct  and  management  of 
the  house  and  its  inmates,  but  it  does  not  authorize  the  com- 
missioners to  delegate  their  authority  to  inflict  corporal  pun- 
ishment to  a  superintendent  or  other  person,  if,  indeed,  they 
have  such  pov'?r  themselves.       Wo  need  not  pass  upon  these 
questions  further  than  to  say  that  the  power  to  inflict  corjjoral 
punishment  upon  the  inmates  of  tho  workhouse  could  not  be 
delegated  to  the  superintendent  by  tho  commissioners,  but,  if 
they  could  so  delegate  it,  they  would  not  themselves  be  justi- 
fied in  intlicting  the  punishment  inflicted  in  this  case  upon  the 
provocation  given.     A  convict  does  not  lose  all  his  rights  of 
protection  for  his  person  by  Iwing  sentenced  to  the  workhouse, 
nor  is  his  liberty  to  be  restrained,  except  so  far  as  it  is  done  by 
the  law  imder  the  sentence  of  the  court.     The  whipping  post 
and  hish  as  means  of  punishment  for  criminal  offenses  have 
long  since  been  abolished  in  Tennessee  as  relics  of  the  past, 
even  when  criminals  have  l)oen  convicted  by  a  jury  of  their 
peers;  and  it  would  Ix^  an  anomaly  to  hold  that,  when  a  crimi- 
nal had  ])een  thus  convicted  and  sentenced  by  a  court,  he  could 
not  Ik'  corporally  punished,  and  yet,  if  he  has  been  sentenced 
for  some  crime,  he  might  be  so  punished,  at  the  discretion  of 
one  man  for  another  offense  or  fault,  without  even  the  form  or 
semblance  of  a  trial.     It  is  true,  prisoners  must  be  kept  in 
subordination  by  proper  means,  but  this  can  be  done  in  the 
workhouse  without  the  lash,  as  it  has  been  done  in  the  punish- 


•    ! 


n 

;    '"'if  ' 
'J 

!'        i 

i!  -'it 


1 


ril 


110 


AMERICAN  CRIMINAL  REPORTS. 


niont  of  criniinuls.     TIio  right  to  inflict  corporal  punisliiuoiit 
upon  felons  in  tlic  penitentiary  ia  not  involvotl  in  tliia  case,  ;iinl 
upon  that  (pKwtion  \vc  express  no  opinion.     In  tliis  case  tlu' 
d(  fciidant  jjad  no  right  to  bring  the  cliihl  to  tlio  workhouse,  nor 
to  keep  it  there,  and  the  superintendent  liad  no  rigljt  to  h  t  it 
remain  there,  even  if  its  board  liad  k'en  paid.     It  was  not  n 
proper  place  for  the  child  to  be.     But  the  superinten-'ent  liinl 
no  riiilit  to  demand  pay  for  keejiing  it,  nor  to  reipiire  the  pliiiu- 
titf  to  i!,ive  up  her  nion(\y  for  that  purpose,    llis  demand  u|M.n 
tlie  plaintiff  was  unlawful  and  arbitrary.     We  arc  not  able  id 
see  ill  her  reply  any  sullioient  provocation  for  the  treatnuiit 
the  superintendent  gave  her.     She  liad  a  right  to  refuse  to  give 
up  her  money,  and,  if  she  refused  to  send  away  the  child,  it 
furnislud  no  ground  for  inflicting  personal  chastisement  u]iiiii 
her.     The  superlnteiulent  could   himself  have  sent  the  eliilil 
awiiy,  and  should  have  done  so.    Nor  was  her  language  such  as 
to  make  her  disorderly,  and,  if  it  had  been,  she  could  have  Ix  t  ii 
punislunl   otherwise.        The  punishment  was  wholly   witlmut 
authority,  and  was  arbitrary,  and  illegal,  and  the  charge  of  ilic 
court,  was  correct,  and  the  verdict  of  the  jury  was  fully  war- 
ranted by  the  facts.     This  is  not  a  new  question  in  this  slate. 
The  cases  of  Cornell  v.  Slate,  G  Lea,  G24;  SniUh  v.  Stair,  S 
Lea,  744,  and  Boone  v.  State,  id.  739,  are  in  accord  with  this 
holding.    It  is  said  these  cases  have  been  rendered  obsolete,  as 
the  result  of  later  acts  of  legislation.     We  do  not  think  sn. 
While  the  later  statutes  have,   to  some  extent,   changed   the 
workhouse  system,  such  change  has  not  operated  to  authorize 
the  infliction  of  corporal  punishment  for  such  cause  as  ai)peaiv 
in  this  case.    Nor  does  it  authorize  the  delegation  of  the  power 
to  whip  to  a  superintendent  by  the  commission.     The  judgment 
is  affirmed. 


BARNES  V.  STATE. 


Ill 


Barnes  v.  State. 

Texas — Court  of  Criminal  Appeals — 72  S.  W.  Rep.  1C8. 

Decided  February  11,  1903. 

Ass.vti.T— AouBAVATKi)  Assaui.t:  Alarming  another — Construction  of 
statute — Animate  and  inanimate  objects  used  as  means  of  as- 
saults. 

1.  Accused  being  on  horseback,  was  approached  by  .John  McGee,  and 

twice  Interrogated  ns  to  the  ownership  of  the  horse;  accused 
qul(Kly  turned  his  horse  toward  McGee,  who  at  the  cry  of  some 
Leys,  that  he  was  about  to  be  run  over,  turned  and  ran,  and 
fulling  over  a  beer  keg  hurtin'^  his  leg.  Accused  did  not  follow 
him.  Held,  that  the  act  and  Intent  of  accused  were  essen  lal  to 
the  crime  charged;  but  not  the  belief  of  McGee — hence  no  assault 
committed. 

2.  The   .statute    which    provides    that,    "the    use    of    any    dangerous 

weaijon,  or  semblanie  thereof,  In  an  angry  or  threatening  man- 
ner, with  Intent  to  alarm  another,"  etc.,  constitutes  an  assault, 
does  not  justify  an  Instruction  applying  this  provision  to  "any 
animate  or  Inanimate  object  or  semblance  thereof." 

3.  The  above  provision  of  the  statute  refers  only  to  simple  assaults; 

while  the  court  only  submitted  to  the  jury  the  Issue  as  of  an 
aggravated  assault. 

Ai)po:il  fniin  Hill  C\ninty  Court;  lion.  L.  C.  Hill,  Judgo. 
Jlciiry  Barms,  convicted  of  aggravated  assault,  appeals.   Re- 
versed. 


Howard 
State. 


S.   Martin,   Assistant   Attorney   General,    for   the 


Davidsox,  p.  J.  Appellant  was  fined  $25  on  convnction  of 
aggravated  as.sault. 

The  evitleiiee,  put  in  its  strongest  light  for  the  state,  shows 
appellant  was  on  the  streets  of  llillsboro,  sitting  on  his  horse 
in  front  of  a  barber  shop  talking  to  a  friend.  lie  was  about 
the  middle  of  the  street.  The  alleged  injured  party,  John 
ilcGec,  was  "sitting  on  the  opposite  side  of  the  street  on  a 
Ixer  keg,"  from  which  he  arose  and  approached  within  8  or 
10  feet  of  defendant,  and  asked  him  "if, that  was  his  colt." 
deceiving  no  reply,  he  repeated  the  question.  Appellant  said 
sciuething  not  understood  by  the  witness,  and  jerked  his  horse 

For  cases  la  previous  volumes  on  any  subject,  see  Table  of  Topics  in 

this  volume. 


.'    tl 


tf 


f  i. 


=f  '  'I'. 


112 


AMERICAN  CRIMINAL  REPORTS. 


around  in  direction  of  witness.  Witness  ran,  did  not  look  badi, 
and  fell  over  a  bocr  keg.  Witness  was  rather  to  the  rear  of 
the  hurst'  Avhcn  lie  asked  the  question.  Apjjellant,  when  spukcn 
to  by  -vvitncss,  jerked  his  horse  around  with  his  head  toward-; 
witness,  and  nia<le  a  remark  not  understood  by  Avitness.  At 
the  same  time  some  boys  who  Avero  near  by  halloed,  "Look  our; 
he  is  iidiiiu'  to  run  over  you;"  and  it  Avas  then  Avitness  ran  and 
fell  over  the  l)ccr  keg  and  hurt  his  leg.  Witness  says  he  ran, 
as  he  thouglit,  to  keep  from  being  run  over  and  to  get  out  n{ 
the  Avay  of  the  horse.  Otlier  Avitnesses  testify,  some  of  wIkmu 
place  the  distance  betAveen  the  alleged  injured  party,  ^IcGcc, 
and  defendant  at  25  or  30  feet.  But  none  of  them  testify  tluit 
appelhuit  chased  ^IcGee,  or  that  he  claimed  to  be  in  any  way 
hurt,  until  after  he  had  been  made  the  subject  of  sport  by  the 
bA'standcrs. 

After  giving  the  definition  of  assault  and  assault  and  lial- 
tery,  and  the  limitations  upon  these  as  made  by  the  statute, 
the  court  proceeds  in  this  language:  ''Or  Avho  is  at  so  groat  a 
distance  from  the  person  assailed  as  that  he  cannot  reach  his 
person  by  the  use  of  the  means  Avith  Avhich  he  makes  the  at- 
■temi)t  is  not  guilty  of  an  assault,  but  the  use  of  any  animate 
or  inanimate  object,  or  the  semblance  thereof,  in  an  angry  or 
threat(i.ing  manner,  Avith  intent  to  alarm  another  and  uulcr 
circumstances  calculated  to  aifect  that  object,  comes  Avithin  the 
meaning  of  an  assault."  Wo  suppose  the  court  intended  to  give 
in  chni'gc  that  portion  of  the  third  sub-division  of  article  r>ll2. 
Pen.  ('(kIc,  which  reads  as  folloAvs:  ''But  the  use  of  any  dan- 
gerous Aveapons,  or  the  semblance  thereof,  in  au  angi-y  (U' 
threatening  nninner,  Avitli  intent  to  alarm  another,  and  niider 
such  circumstances  calculated  to  (tfcct  that  object,  comes  Aviihiii 
the  meaning  of  an  assault."  But  in  doing  so  he  sub^'tiniled 
in  place  the  expression,  "The  use  of  any  dangerous  weapon," 
the  pliase,  "the  use  of  any  animate  or  inanimate  object  or  tlio 
semblance  thereof."  This  charge  is  clearly  erroneous.  Tliere 
are  cireumstances  under  AAdiich  the  use  of  animate  or  inani- 
mate objects  might  constitute  an  assault;  as,  for  instance,  driv- 
ing a  I'Hiziiy  against  a  party  and  other  facts  concurring  t<>  that 
end  might  constitute  an  assault.  Other  illu^itrations  of  that 
sort  might  bo  given.  But  simply  the  use  of  any  animate  nr 
inanimate  object  for  the  purpose  of  alarming  another  docs  not 


I  i 


GOODE  V.  STATE. 


113 


Tindei'  our  statute,  constitute  an  assault.  It  must  be  a  danger- 
ous weapon  or  the  semblance  tbereof,  and  used  in  an  angrV  oi' 
tliroatoiiing  manner,  Avith  intent  to  alarm,  and  tbis  would  only 
constitute  a  simple  assault.  The  court  only  submitted  tbe 
issue  of  aggravated  assault. 

JJiit  under  tbe  facts  stated  we  do  not  believe  tbe  evidence 
sho'As  an  assault.  Tbe  fact  tbat  Jobn  l^LcGoe  rah,  believing 
appellant  was  going  to  cbase  bini,  would  not  constitiite  an 
assault.  It  is  tbo  act  and  intent  of  an  accused  party  wbicb  con- 
stitute s  liini  guilty,  and  not  tbe  belief  of  tbo  party  assaulted.  If 
the  defendant  bad  caused  !Me(jee  to  run  over  tbe  lieer  keg,  or 
put  bini  in  such  condition  tbat,  to  esca])o  being  ridden  down,  be 
had  been  forced  to  run  over  tbe  beer  keg  and  injure  bimsolf, 
pcrliaj'ri  this  might  have  constituted  an  assault.  But  appellant 
iliu  not  ehase  ^IcGeo. 

Fdv  the  errors  indicated,  tbe  judgment  is  reversed  and  tbo 
cause  remanded. 


GoooE   v.   State. 

Texas — Court  of  Criminal  Appeals — 77  G.  W.  Rep.  799. 

Decided  December  16,  1903. 

Aggravated  Assault — Parknt  ano  Citu.n:     Right  of  parent  to  mod- 
erately chastise. 

1.  A  parent  has  a  right  to  moderately  correct  his  or  her  child. 

2.  Slnpiiing  a   disobedient   dau.;;hter  of   seventeen   years   of   age;    or 

hading  her  off  by  the  hair,  is  not  immoderate  punishment. 

Appeal  from  District  Court,  Jasper  County ;  Hon.  W.  P. 
Xicks,  Judge. 
G.  i).  Goodo  convicted  of  aggravated  assault  appeals.     Rc- 

ver#e<l. 

Hotrard  Martin,  Assistant  Attorney  General,  for  tbe  State. 

Davidsox,  p.  J.  Appellant  was  convicted  of  an  aggravated 
assault  upon  bis  daughter,  a  17  year  old  girl.  Tbe  evidence  dis- 
clojos  he  had  in  bis  arms  a  little  child,  and  requested  or  ordered 


For  rases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 

this  volume. 

Vol.  xni— 8 


U;   I   '■;■< 


m 


iti' 


j;a 


i'       I  ' 


'4 


f'fi 


114 


AMERICAN  CRIMINAL  REPORTS. 


liis  daughter  to  take  the  child.  She  replied  that  she  would  do 
so  directly.  Appellant  got  up,  the  girl  broke  to  run,  and  hv 
chased  her  to  a  residence  some  200  yards  away.  Mrs.  Dailcy. 
the  owner  of  th.e  residence,  testified  that  when  he  came  in  tlio 
house  he  caught  hor  by  the  sleeve  and  tore  it,  while  the  gir! 
testitird  that  he  slappeil  her,  took  her  by  the  hair,  and  led  hor 
oflF  the  gallery.  These  are  the  facts  upon  which  the  convictidti 
was  obtained.  The  statute  provides  that  correction  by  the  pai- 
cnt  of  the  child  is  not  a  violation  of  the  law,  if  moderatelv 
(lone.  There  is  nothing  in  the  testimony  which  shows  that  tlio 
parent  had  exceeded  the  bounds  of  moderation,  and  therefore 
we  are  of  opinion  the  evidence  is  not  sufficientto  justify  tho 
conviction. 

The  judgment  is  reversed,  and  the  cause  remanded. 


Stephens  v.  State. 

44  Texas  Crim.  Rep.  67— G8  S.  W.  Rep.  281. 

Decided  May  7,  1902. 

Assault  and  Battery — Riciit  ok  Teacher  to  Reasoxahly  Chastise  a 
Pipil:     Presumption  in  favor  of  teacher — Evidence. 

1.  Under  the  Texas  statute,  a  teacher  has  the  discretionary  right  to 

reasonably  punish  a  scholar.  In  such  case,  unless  the  contrary 
appears  from  the  evidence,  the  reasonableness  of  the  punishment 
is  presumed. 

2.  The  accused,  who  was  a  school  teacher,  chastised  a  scholar  for 

writing  a  vile  and  obscene  note  in  such  a  manner  as  to  leave  the 
blame  on  another  scholar.  The  punishment  consisted  of  twenty- 
seven  strokes  on  the  legs  and  six  on  the  shoulders.  Owing  to  the 
scantiness  of  clothing  (which  fact  was  unknown  to  the  teacher) 
marks  were  left  on  the  legs  but  none  on  the  shoulders — held,  that 
the  evidence  did  not  show  that  the  act  was  malicious  or  excessive. 

Appeal  from  Llano  County  Court;  Hon.  F.  J.  Johnson, 
Judge. 

A.  J.  Stephens  convicted  of  a  simple  assault,  appeals.  Re- 
versed. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


writing 

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STEPHENS  V.  STATE. 


115 


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McLean  &  Spears,  for  the  appellant. 

Uohcrt  A.  John,  Assistant  Attorney  Genernl,  for  the  State. 

B HOOKS,  J.  Appellant  was  prosecuted  by  information  on  a 
cliiU'go  of  aggravatod  assault  upon  Willie  Thompson,  a  child. 
I'poii  the  trial  he  was  convicted  of  simple  assault,  and  his  pun- 
islniicnt  assessed  at  a  fine  of  $5. 

The  evidence  adduced  on  the  trial  is  substantially  as  follows: 
Dofcnihint,  A.  J.  Stephens,  29  years  of  age,  was  teacher  of  the 
Valley  S])rings  public  free  school,  in  Llano  county;  and  Willie 
Thompson  was  a  pupil  in  said  school,  about  12  years  of  age. 
On  O('tol)er  11th,  during  school  hours,  Thompson  Avas  discov- 
orod  1)\-  defendant  reading,  with  Bourland,  another  pupil,  the 
following  note,  to  wit :  ada  I  have  Fuck  you  and  you  had  a 
cid  and  its  name  is  bollie  Jester,  wade  hampton."  There  ^vas 
a  girl  alxiut  11  years  old  by  the  name  of  Ada  Jester,  who  was 
also  a  pupil  in  the  school,  and  the  only  pupil  in  the  school 
whoso  name  was  Ada.  When  defendant  saw  Thomjjson  and' 
Btiurliuid  looking  at  said  note,  he  caused  it  to  be  brought  and 
delivered  to  him,  and  instituted  inquiry  to  ascertain  the  author. 
Wade  Hampton  was  another  pupil  of  said  school,  and  he  and 
Willie  Thompson  had  had  a  fight  the  evening  before.  At  recess 
Willie  Thompson,  W^ade  Hampton,  and  Jimmio  Bourland  were 
kept  in  by  defendant  for  the  purpose  of  asicertaining  who  was 
guilty  of  writing  the  note.  Willie  Th(mipson  said  he  picked 
the  note  up  from  the  floor,  and  that  he  saw  Wade  Hampton 
writing  something.  Jimmie  Bourland  said  the  first  time  he 
saw  the  note  Willie  Thompson  had  it  in  his  hand.  Jimmio 
Bourland  was  sitting  in  school  immediately  behind  Willie 
Thompson,  and  Wade  Hampton  was  sitting  just  across  the 
aisle,  o[)posite  Willie  Thompson.  All  three  boys  denied  writ- 
ing the  note.  Xo  further  investigation  was  made  until  time  to 
dismiss  school  for  the  day,  when  the  girls  were  all  dismissed, 
and  the  boys  were  required  to  remain,  whereupon  eight  of  the 
hoys  who  occupied  seats  around  near  where  the  note  was  first 
scon  were  instructed  to  take  their  tablets  and  pencils,  and  to 
write,  at  defendant's  dictation,  the  words,  "had  a  kid,"  and 
"Wade  Hampton."  And  the  formation  of  the  letters  in  the 
words  so  written  by  Willie  Thompson  was  exactly  similar  to 
the  formation  of  the  letters  in  the  corresponding  words  in  the 


11 


ii 


1^ 


if    ' 

•  \   m 


116 


AMERICAN  CRIMINAL  REPORTS. 


note,  and  spelled  alike.    IJefendant,  after  having  satisfied  him- 
self that  Willie  Thompson  wrote  the  note,  caused  one  of  tli,' 
pupils  to  go  out  and  bring  in  two  switches.     The  boy  sent  mir 
for  the  switches  brought  in  two  green  nicsquitc  switches,  auj 
defendant,  with  one  of  the  switches,  proceeded  to  whip  Willie 
Thompson  on  the  legs.     After  three  or  four  strokes,  the  iir>t 
f^witch  broke,  and  defendant  laid  the  stub  down  and  took  tlu; 
other   switch,,  and   finished   the  chastisement,   striking  Willio 
Thompson  on  the  legs, — in  all,  twenty-seven  licks  on  the  legs, — 
after  which  ho  walked  to  the  window,  and  returned  and  struck 
Willie  Thompson  six  times  more  over  the  shoulders.     As  the 
result  of  this  whipping,  the  said  Willie  Thompson  had  striped, 
bruised,  and  blue  places  on  him  from  just  below  the  hips  nearly 
down  to  the  ankles;  but  the  stroke!  across  the  shoulders  left  no 
marks.    Willie  Thompson  at  the  time  was  wearing  thin  cotton 
pants,  extending  down  to  about  the  ankle,  and  had  no  draw- 
ers, but  defendant  did  not  know  that  he  had  on  no  draw(  I's. 
Defendant  testified:     That,  when  he  saw  the  contents  of  tlio 
note,  such  feelings  came  over  him  that  he  could  not  describe ; 
that  he  felt  outraged  that  such  a  note  should  be  written  by  one 
of  his  pupils  about  one  of  the  girls  going  to  his  school.     Tliiil 
he  first  thought  Wade  Hampton,  whose  name  was  to  the  mitr. 
wrote  it,  and  was  inclined  to  whip  Wade  for  the  offense,  bur 
he  decided  to  make  a  full  investigation  of  the  matter  first.  After 
he    made  the    investigation    outlined  above,    he    told    WilliL' 
Thompson  that  he    was  guilty,    to  which    Willie    Thompsmi 
replied,  "If  I  wrote  it,  I  didn't  know  it."     That  ho  whiitjied 
Willie  Thompson  for  the  sole  purpose  of  maintaining  disci])liihi 
in  his  school,  and  was  not  actuated  by  anger,  spite,  or  ill  will. 
That  he  thought  the  boy  deserved  a  good  whipping,  and  he  liavc 
it  to  him,  but  did  not  intend  to  inflict  immoderate  punishment. 
It  was  testified  to  by  one  of  the  school  boys  that  defendnnt 
looked  like  he  was  mad ;  that  his  face  was  red.    W^illie  Thoni])- 
son's  father  and  mother  did  not  know  anything  about  the  whip- 
ping until  late  the  next  evening,  which  Avas  Saturday,  and  tlio 
next  morning,  which  Avas  Sunday,  Willie  Thompson's  fatlur 
brought  him  down  to  Llano,  and  filed  complaint  against  defend- 
ant for  an  aggravated  assault. 
Article  593,  Pen.  Code,  provides  that: 


•   i,:^ 


PRICE  V.  STATE. 


117 


"Violence  used  to  the  person  does  not  amount  to  an  assault 
or  battery  in  the  following  cases:  (1)  In  the  exercise  of  the 
right  of  moderate  restraint  or  correction  given  hy  law  to  the 
})iir('iit  over  the  child,  the  guardian  over  the  ward,  the  master 
ov(  r  his  ap[)rentice,  the  teacher  over  the  scholar." 

Under  the  provisions  of  this  article,  the  law  confides  in  the 
teacher  the  discretionary  power  to  punish  pupils,  and  exoner- 
ates him  from  punishment  unless  the  whipping  is  excessive  or 
malicious.  Thei*e  is  nothing  in  this  evidence  to  indicate  that 
such  was  the  case  here.  It  is  a  presumption  in  favor  of  appel- 
lant that  in  correcting  the  pupil  he  did  so  in  the  exercise  and 
within  the  hounds  of  lawful  authority.  We  do  not  think  the 
evidence  supjiorts  the  verdict.  Dowlen  v.  State,  14  Tex.  A])p. 
01;  Uattoii  V.  Same,  23  Tex.  App.  386,  5  S.  W.,  122,  59  Am. 
Rep.,  770 ;  Kimiard  v.  Same,  35  Tex.  Cr.  R.,  276,  33  S.  W., 
234,  00  Am.  St.  Rep.,  47. 

The  judgment  is  reversed,  and  the  cause  remanded. 


Price  v.  State. 


■  is-:'   .* 


■Wr 


118  Ga.  60—44  S.  E.  Rep.  820. 

Decided  May  30,  1903, 

Assault:     Attempt  to  strike  a  woman,  who  with  force  teas  ejecting 
accused  from  her  house. 

1.  A  finding  that  the  accused  was  guilty  of  an  assault  was  fully  war- 
ranted by  the  evidence,  from  which  it  appeared  that  he  entered 
the  house  of  the  prosecutrix,  notwithstanding  he  had  been  re- 
peatedly told  by  her  not  to  come  there,  and  began  to  curse  and 
abuse  her;  that  she  thereupon  "picked  up  a  bed  slat  or  door  bar, 
and  hit  him  two  licks  on  the  leg.  when  he  grabbed  up  a  hoe  and 
(lied  to  hit"  her  a  severe  blow;  and  that  he  was  prevented  from 
thus  Inflicting  upon  her  a  grievous  battery  only  by  reason  of  the 
fact  that  another  man  present  interposed,  and  "caught  the  lick 
with  a  chair."  The  jury  might  well  have  reached  the  conclu- 
sion that.  In  view  of  the  provisions  of  section  103  of  the  Penal 
Code  of  1895,  the  prosecutrix  was  justified,  because  of  the  oppro- 
brious words  and  abusive  language  of  the  accused,  in  striking 


For  rases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


hi  « 

*  Ix 

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h^i 

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i 

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3   I 


BV1  -M 


118  AMERICAN  CRIMINAL  REPORTS. 

him  as  she  did;  It  not  appearing  from  the  testimony  that  the 
weapon  with  which  she  struck  him  was  used  by  her  in  sucb 
manner  as  to  Inflict  upon  him  great  bodily  injury,  and  he,  in  his 
statement  to  the  jury,  making  no  pretense  that  he  acted  in  self- 
defense,  but  relying  wholly  upon  his  flat  denial  that  he  made  any 
attempt  to  strike  her  with  the  hoe. 
(Syllabus  by  the  Court.) 

Error  from  the  City  Court  of   Sandersville ;  Hon.  P.  IJ. 
Tsiliaferro,  Judge. 
J.  W.  Price  convicted  of  assault,  brings  error.    Affirmed. 

J.  A.  Rohson,  for  the  plaintiff  in  error. 
J.  E.  Ilyman,  solicitor,  for  the  State. 

Per  Curiam.    Judgment  affirmed. 


1 


m 


,,f. 


BuowN  V.  State. 

43  Tex.  Cr.  Rep.  411—66  S.  W.  Rep.  547. 

Decided  January  29,  1902. 

AssAtTLT — Officer:     Assault  on  one  appointed  a  deputy  sheriff;  hut 
who  failed  to  take  the  oath. 

1.  One  who  has  been  appointed  a  deputy  sheriff  but  who  refused  to 

take  the  oath  is  neither  de  jure  or  de  facto  an  officer. 

2.  An  assault  on  an  officer  is  an  aggravated  assault  and  not  a  simple 

assault. 

3.  The   Indictment  was   for  an   aggravated   assault   upon   an   officer. 

The  defense  was  that  the  alleged  assault  was  the  resistance  of  an 
Illegal  attempt  to  arrest  by  one  who  was  not  an  officer.  The 
verdict  was  guilty  of  assault.  While  it  is  true  that  one  charged 
with  aggravated  asault  may  be  guilty  of  simply  an  assault,  yet 
In  this  case  the  verdict  of  guilty  of  simple  assault,  negatives  the 
idea  that  it  was  upon  an  officer,  hence  the  resistance  being  legal 
no  assault  was  committed,  and  the  verdict  error. 

Appeal  from  the  Collin  County  Court ;  Hon.  J.  H.  Faulkner, 
Judge. 

C.  E.  Brown  being  convicted  of  a  sl^nple  assault,  appeals. 
Reversed. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


\'  I 


BROWN  V.  STATE. 


119 


Garnett,  Smilh  £•  Mcrritt  and  F.  E.  Wilcox,  for  the  appel- 
lant. 
Rohert  A.  John,  Assistant  Attorney  General,  for  the  State. 

IIkndeuson,  J.  Appellant  was  convicted  of  a  simple 
assault,  and  his  punishment  assessed  at  a  fine  of  $5 ;  hence  thin 
appeal. 

This  is  the  second  appeal.  See  Brown  v.  State,  42  Tex. 
Criiii.  Kep.,  417,  00  S.  W.,  548.  The  facts  before  us  on  the 
pro-t  nt  appeal  are  substantially  the  same  as  those  on  the  former 
appeal,  except  with  reference  to  the  qualifications  of  Robertson 
as  dejjuty  sheriff.  In  the  former  appeal  the  proof  showed  a 
mere  omission  to  file  the  oath  and  bond.  In  the  present  a])peal 
it  is  shown  he  refused  to  take  the  oath  in  order' to  qualify,  as 
shown  by  bill  of  exceptions. 

Appellant  complains  of  the  following  portion  of  the  charge 
of  tho  court:  ''When  an  injury  is  caused  by  violence  to  a 
person,  intent  to  injure  is  presumed,  and  it  rests  with  the  per- 
son inflicting  the  injury  to  show  the  accident  or  innocent  inten- 
tion." While  we  do  not  believe  this  charge  should  have  been 
givin,  yet,  in  view  of  the  eighth  paragraph  of  the  court's 
charge,  we  do  not  believe  the  same  constitutes  reversible  error. 

Ap])cllant  complains  of  the  action  of  the  court  in  instructing 
the  jury  that  Kobertson,  the  allege<l  deputy  sheriff,  was  a  de 
facto  olHeer,  and  that,  instead  of  said  charge,  the  court  should 
have  given  the  requested  special  instriictions  as  follows:  "You 
are  fnrtlier  instructed  that,  if  Alex  Robertson  designedly  failed 
and  refused  to  take  the  official  oath  and  have  his  appointment 
recorded  as  required  by  law,  then  he  is  not  an  officer  de  facto 
nor  (/('  jure,  and  you  will  acquit  the  defendant."  In  the  same  con- 
nection, we  will  also  notice  a]i])ellant's  third  bill  of  exceptions, 
which  presents  the  evidence  insisted  upon  by  the  State  as  con- 
stituting Robertson  a  de  facto  deputy  sheriff.  The  written 
appointment  of  Robertson  by  the  sheriff  of  Collin  County, 
dated  February  1,  1890,  was  offered  in  evidence;  but  it  Ava^ 
shown  this  was  not  recorded,  nor  was  tho  oath  of  oflSce  appended 
to  tlie  same,  but  it  Avas  cut  off  the- paper.  Robertson  testified 
he  had  not  taken  the  oath  of  office,  nor  had  his  appointment 
filed  in  the  office  of  the  county  clerk  of  Collin  county;  that  he 
refused  to  take  the  oath  of  oflice  because  he  was  not  in  position 


■  K^k'h 


t 


:«fi 


Ill 


III 

mi" 

IJi 

1:1 


120 


AMERICAN  CRIMINAL  REPORTS. 


to  do  regular  work  (that  is,  such  work  as  he  heard  of) ;  that  lie 
told  the  sheriti'  at  the  time  ho  would  not  do  regular  work,  but 
that,  any  matter  around  town  that  needed  special  attention,  ho 
would  attend  to  it ;  that  he  did  not  remember  who  had  cut  the 
oath  of  otHce  off  the  appointment;  that  he  might  have  done  it. 
On  this  proof,  appellant  moved  to  exclude  the  evidence  of  Koh 
ort><on's  appointment  as  deputy  sheriff,  claiming  it  was  no 
appointment,  but  his  assuming  to  act  under  it  merely  consti- 
tuted him  a  volunteer.  It  aj)pears  from  the  record  that  this 
alleged  appointment  was  made  by  the  sheriff  on  the  1st  of 
February,  1899;  that  the  arrest  of  appellant  was  made  August 
0,  1S99;  that  in  the  interim  Kobertson  had  previously  miulo 
one  arrest.  The  qxiestion  is,  was  llobertson  a  de  facto  office r, 
and  as  such  authorized  to  arrest  ai)pellant,  or  was  he  a  mere 
volunteer?  On  the  former  appeal,  on  the  proof  as  present!  d, 
we  held  he  was  a  de  facto  ofiicer.  Uut  then  the  proof  j)resent(>:l 
dinl  not  show,  as  here,  that  appellant  absolutely  refused  to  take 
the  oath  of  office  and  file  the  same  in  the  oftice  of  the  county 
clerk  in  connection  with  his  appointment.  There  was  no 

proof  offered  then  or  now  that  he  exercised  the  duties  of  his 
office,  and  that  he  had  the  reputation  in.  the  community  of 
being  a  deputy  sheriff.  On  tlie  record  as  here  i)re3enteil,  it 
occurs  to  us,  there  was  a  refusal  to  accept  the  appointment. 
There  was  certainly  a  refusal  to  qualify  as  de])uty  sheriff.  In 
this  connection  our  attention  has  been  called  to  articles  (Wi-J, 
CGo,  and  GGl  of  the  Penal  Cotle,  and  to  subdivisions  3  and  -t 
under  the  last-named  article.  Those  provisiiuis  of  the  Code 
indicate  the  circumstances  under  which  an  officer  is  justifiab'e, 
in  case  of  homicide,  in  taking  the  life  of  ihe  party  resisting 
arrest;  but,  of  course,  they  have  some  application  to  the  ques- 
tion here  presented.  See  article  593,  subd.  .'),  Pen.  Code.  Sub- 
divisions 3  and  4,  referred  to,  are  as  follows:  "(3)  The  per- 
son executing  the  order  must  be  some  officer  duly  authorized 
by  law  to  execute  the  order,  or  some  person  specially  appointed 
in  accordance  with  law  for  the  performance  of  that  duty.  (4)  If 
the  person  executing  the  order  be  an  officer,  and  performing  a 
duty  M-hich  no  other  person  can  by  law  perform,  he  must  have 
taken  the  oath  of  office  and  given  bond,  where  such  is  required 
by  liw."  In  case  of  homicide  it  would  appear  that  a  dc  facio 
officer  (that  is,  one  assuming  the  functions  of  the  office  without 


nprr^mrm 


Bsama/mitmmM 


BROWN  V.  STATE. 


121 


giving  bond,  taking  oath,  and  having  the  same  filed  according 
to  law)  could  not  justify  in  case  he  killed  one  who  was  resisting 
arrest.  However,  we  understand  our  decisions  to  go  beyond  ...o 
literal  scope  of  these  statutes,  and  that  a  de  faclo  olHccr  has  the 
same  right  in  making  an  arrest  as  a  de  jure  oiHcer.  The  detini- 
tioii  of  a  dc  facto  officer  is  given  in  the  books  in  general  terms. 
Auioiig  other  definitions,  it  is  held  that  one  is  a 
(1c  I'dclo  officer  who  acts  under  color  of  a  known  and 
valid  appointment  or  election,  but  where  the  officer  had  failed 
to  eonl'orm  to  some  precedent,  requirement,  or  condition,  as 
taking  oath,  giving  a  bond,  or  the  like.  8  Am.  &;  Eng.  Enc. 
Law  (2d  Ed.)  782.  In  this  case  there  was  not  a  mere  neglect 
or  failure  to  take  the  oath,  but  there  was  absolute  rf^fiisal  to 
take  such  oath.  Indeed,  it  was  cut  off  from  tho  paper  constitut- 
ing the  alleged  ap[)ointmeut.  It  occurs  to  us,  there  Avas  a 
refusal  here  to  accept  the  aj)pointment.  IJeyond  this,  there  was 
not  that  reputation,  originating  in  the  discharge  of  the  office 
and  the  acquiescence  in  the  connnunity,  such  as  would  consti- 
tute appellant,  without  a  regular  ai)i)ointment,  a  dc  faclo  officer. 
Under  the  facts  of  this  case,  as  presented,  we  are  inclined  to 
the  opinion  that  appellant  was  not  a  dc  facto  de))uty  sheriff. 

Aj>]i('llant  very  urgently  insists  the  court  erred  in  charging 
tho  jury  that,  if  appellant  was  not  guilty  of  an  aggravated 
assault,  then  to  determine  whether  or  not,  from  the  i  vidence,  he 
was  guilty  of  a  sim])h!  assault;  and,  in  this  connection,  he  also 
insists  that  the  verdict  of  the  jury,  finding  appelhuit  guilty  of  a 
h.iniple  assault,  is  not  authorized  by  the  facts,  but  is  tantamount 
to  an  acquital.  We  are  aware  that,  as  a  general  ]>ro])osition, 
one  cliargcd  with  aa  aggravated  assault  cannot  complain  because 
of  his  c(»nviction  of  a  simjde  assault.  Foster  v.  t^laic,  2.')  Tex. 
App.,  r)43,  8  S.  W.,  (504.  In  /rt/y  v.  State,  41  Tex.  Crim.  Rep., 
r»41,  55  S.  W.,  335,  this  principle  was  extended  to  a  charge  of 
aggravated  assault  alleged  to  have  boon  committed  upon  an 
(tliccr  in  the  lawful  discharge  of  the  duties  of  liis  office.  IIow- 
ovor,  tl;e  decision  does  not  indicate  that  the  point  here  insisted 
on  arose  from  the  facts  in  that  case,  or  that  the  question  here 
presented  was  decided.  Appellant  liere  maintains:  That  if 
Robertson,  the  alleged  deputy  sheriff,  was  a  dei)uty  sheriff, 
either  dc  jure  or  dc  facto,  then  he  had  a  right  to  arrest  and 
detain  appellant,  and  any  resistance  showing  personal  violence, 


Wi' 


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122 


AMERICAN  CRIMINAL  REPORTS. 


;■  i 


or  intent,  coujiled  with  the  ability,  to  commit  such  violence, 
would  constitute  an  assault,  and  that  assault  would  be,  hy  tlio 
terms  of  the  statute,  an  aggravated  assault.     If,  on  the  cdn- 
trary,  Kohertson  was  not  such  de  jure  or  de  facto  officer,  ho  IkkI 
no  right  to  arrest,  or,  having  arrested,  to  detain,  apijcllant;  iind 
appellnnt  would  have  the  right  to  resist  such  unlawful  arrest  oi- 
detention,  and  any  violence  used  by  him  or  threatened  violence, 
for   the  ])uri)ose  of  effecting  his  release,   and   not  excessive, 
\v(mld  not  constitute  an  assault  of  any  character.     That  wIk-.i 
llie  jury  found  a])p(llant  guilty  of  a  simple  assault,  this  ac(|iiit- 
ted  him  of  an  aggravated  assault,  they,  in  effect,  detcrmincil 
that    Kobertsdu    was    not     such     oflicer,     and     if     he     was 
lint    such     oiticer,    of    course,     appellant    had    a     right    to 
do    all   the   evidence   showed   he    did.     It    occurs   to   us    that 
the  pr(i])osition  advanced  is  a  sound  one,  to  wit,  if  Rohertsun 
was  an  oiKcer,  only  in  that  event  did  he  have  the  right  to  arrest 
and  (Utain  appellant;  and  if,  in  the  exercise  of  such  rightful 
authority,  he  was  assaulted  by  appellant,  the  assault  would  ho 
an  aggravated  assault.     If,  on  the  other  hand,  Robertson  was 
n(it  such  officer,  then  appellant  had  a  right  to  resist  such  ari-est, 
■  and,  if  he  committed  an  assault  in  the  necessary  resistance  to 
such  illegal  arrest,  he  could  not  be  guilty  of  a  simple  assault. 
Massie  v.  State,  27  Tex.  App.,  617,  11  S.  W.,  C38;  Min^  v. 
State,  in  Tex.  Cr.  App.,  IGl,  29  S.  W.,  1074,  53  Am.  St.  \{c\\, 
705.    The  fact  that  the  jury  convicted  him  of  a  simple  assault 
was  equivalent  to  finding  that  Robertson  was  not  an  ofHcor 
engaged  in  the  lawful  performance  of  his  duties.     If  this  ho 
correct,  appellant  could  not  be  guilty  of  a  simple  assault,  hecauso 
he  had  a  right  to  resist  an  unlawful  arrest. 

The  judgment  is  reversed,  and  the  cause  remanded. 


><  i«i 


'  i-|i! 


1  ■ 


GILLESPIE  V.  STATE.  123 

OiLLESPIK  V.   StATK. 

89  Ark.  573—64  S.  W.  Rep.  947. 

Decided  October  19,  1901. 

Assault  and  Battkby — Abbkht:  Right  of  police  officer,  when  making 
an  arrest,  to  use  reasonable  force  in  self-defense,  according  to 
the  danger  as  it  appears  to  him. 

1.  Where  an  officer  Is  lawfully  making  an  arrest,  he  may  use  suffi- 

cient reasonable  force  to  effect  such  arrest,  without  calling  others 
to  lilH  assistance;  and  when  resistance  is  made  to  that  extent  as 
to  i)lace  the  officer  In  real  or  apparent  danger,  he  is  Justified  in 
uHing  reasonable  force  to  protect  himself  from  injury;  and  in 
such  case  ha  is  Justified  in  acting  as  the  danger  appears  to  him. 

2,  In  tlie  oi)lnlon  the  Court  reviews  the  evidence;   also  one  instruc- 

tion given  and  one  instruction  refused. 

Appenl  from  Circuit  Court,  Monroe  County;  lion,  George 
M.  ('liii[)liiie,  Judge. 

Pcrrv  Gillespie,  a  city  marshal,  appeals  from  a  convictiou 
for  assault  and  battery,    lleversed. 

C.  F.  Greenlee,  for  the  appellant. 

G.  ir.  Murphy,  Attorney  General,  for  the  State. 

lIuoiiKs,  J.  The  appellant.  Perry  Gillespie,  who  was  th.* 
city  marshal  of  the  city  of  lirinkley,  was  indicted  by  the  grand 
jury  of  Monroe  County,  under  section  147(5,  Sand.  &  II.  Dig., 
for  an  aggravated  assault  upon  one  T.  C.  Bull,  j)lea(lod  not 
guilty,  was  tried,  and  convicted  of  an  assault  and  battery,  was 
fined  $")(),  and  appealed  to  this  court. 

Tlio  cvidenco  tends  to  show  that  T.  C.  Bull  was  drunk,  and 
was  a  dangerous  man,  of  a  violent  temper,  and  in  the  habit  of 
going  armed ;  that  he  was  boisterous,  cursing  and  swearing,  and 
had  made  threats  against  a  negro.  The  appellant  ex])ostulated 
with  Ihill,  tried  to  quiet  him,  and  get  him  to  leave,  more  than 
once.  The  appellant  testifies  that  he  afterwards  saw  Bull  raisa 
a  chair,  as  if  to  strike  Mr.  E.  C.  Brown,  as  he  thought,  and 
timt  he  struck  with  it,  and  he  thought  at  the  time  he  struck  at 
Brown,  who  was  standing  between  Bull  and  his  (Bull's)  horse. 
But  it  ap]ieared  afterwards  that  Bull  struck  over  Brown's  head 
at  the  liMr*e.     At  this  juncture  Gillespie  stepped  up,  and  told 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


» ;<(  H- 


124 


AMERICAN  CRIMINAL  REPORTS. 


l]ull  to  consider  hliusclf  under  arrest,  mid  took  hold  of  Bull's 
wrist,  and  told  JJrowu  to  take  hold  of  hiui.  Jiull  said:  *'^^JU 
aro  a  God  dainnod  lying'  hou  of  a  bitch.  You  cannot  arrest 
luc,"  and  ([uickly  i)Ul  lii.s  hand  to  his  hip  pocket,  when  Oill('s|ii,. 
struck  him  at  once  with  liia  stick,  caHcd  a  policenu\n'a  "hilly/' 
and  says  in  liis  testimony,  "At  the  first  blow,  I  thought  he  \va-» 
coming'  on  mo,  and  hit  hiju  again,  when  ho  fell."  The  stick 
wcigliid  13  ounces.  He  testified  that  ho  not  only  knew  liull'a 
r(|mtation  as  liciug  a  dangerous  nuin  of  violent  temper,  and  iis 
one  wlio  carried  arms,  but  knov  his  character  from  his  personal 
knowledge. 

It  was  admitted  that  Bull  was  drunk,  and  violating  a  city 
ordinance  by  being  drunk  and  disorderly,  and  that  the  appel- 
lant, as  city  marshal,  had  the  right  at  the  time  to  arrest  him. 

At  plaintiff's  request  the  court  instructed  the  jury  as  follows; 
"The  court  instructs  the  jury  that  under  the  law  an  arrest  may 
be  made  by  a  peace  officer  in  obedience  to  a  warrant  of  arrest 
delivered  to  him,  or  without  a  warrant  where  a  public  offense  la 
committed  in  his  presence,  or  where  he  has  reasonable  groniids 
for  b(  lieving  that  the  person  arrested  has  committed  a  felony; 
and  the  court  tells  you  that  a  marshal  is  a  jieace  officer.  Tlio 
court  further  tells  you  that  an  arrest  is  made  by  placing  tlic; 
person  in  restraint,  or  by  his  submitting  to  tl:e  custody  of  tlm 
person  making  the  arrest.  But  in  making  the  arrest  no  unnec- 
essary force  or  violence  shall  be  used,  and  in  this  case,  althoiigli 
the  jury  may  Ixdieve  from  the  evidence  that  the  dofeiulant  was 
a  peace  officer,  and  as  such  was  undertaking  to  arrest  the  ])r(isp- 
cuting  witness,  Bull,  still,  if  you  further  believe  from  the  e 
denee  beyond  a  reasonable  d<mbt  that  the  defendant  used  grea; 
force  or  violence  in  making  the  ^rrest  than  was  apparently  ncr 
cssary,  he  would  not  1)0  justified  or  excusable  under  the  hnv, 
and  you  will  find  him  p^iilty." 

This  instruction  is  not  quite  correct, — not  full  enough,  in 
this,  that  it  reads:  "If  you  further  l)olieve  from  the  evidence 
beyond  a  reasonable  doubt  that  the  defendant  used  greater  force 
or  violence  in  making  the  arrest  than  was  apparently  necessary, 
he  would  not  bo  justified  or  excusable  under  the  law,  and  yi)U 
will  find  him  guilty."  "Apparently  necessary"  to  Avhoni  'i  It' 
it  appeared  to  the  appellant  to  be  necessary,  and  if  he  had  rea- 
sonable grounds  for  such  belief,  it  was  enough  whether  or  not  it 


^imr 


GILLESPIE  V.  STATE. 


125 


iiii"lit  iii)|)oar  to  others  to  bo  nccoasnry.    lie  was  the  person  who 
•iViis  to  act  upon  tlio  oniorgcncv  ns  it  np])onr(Ml  to  him. 

To  covov  this  phnsc  of  the  case  the  appclhint  asked,  but  tho 
court  vcfusctl,  the  followiiif?  iiistnu'tion,  to  whicli  h(>  excepted: 
"If  T.  ('.  IJnll,  nt  the  time  of  the  assnult  enniphiiiied  of,  was 
violdfiii.u'  a  city  ordinance,  or  was  coiiimittinf?  n  misdemeanor, 
the  (IclVndant,  as  city  marshal,  had  n  rij^lit,  and  it  was  his 
(liitv,  to  arn  st  him,  and  to  use  force,  if  necessary,  to  do  so.  lie 
WiiH  not  obliged  to  call  any  one  to  his  assistance.  It  is  not  the 
law  tliiit  all  other  means  nnist  Ix'  resorted  to  before  nsinj^'  foreo 
to  niiikc  the  arrest.  1'he  court  instructs  you  that,  if  defendant 
struck  T.  (\  Bull  while  making  the  arrest,  and  at  the  tinu>  that 
paid  l»nll  was  attem])ting  to  strike  defendant,  or  to  do  him 
injury,  or  if  it  reasonably  appeared  to  defendant,  viewed  from 
his  standpoint  alone,  by  words  or  acts,  or  by  words  ami  acts, 
that  liiiM  was  about  to  nnike  an  unlawful  attack  upon  him,  then 
aiul  ill  that  event  the  defendant  had  a  right  to  use  what(>ver 
UK'iiiis  WHS  necessary  to  protect  himself  from  serious  Ixxlily 
injury.  And  this  is  the  case  althoiigh  it  sul>se(]uently  appeared 
that  the  defendant  used  more  force  than  was  actually  necessary 
to  protect  himself  from  serious  l)odily  injury  or  to  make  the 
arrest.  In  other  words,  the  defendant  had  a  right  to  act  u])on 
(lauiicr,  or  reasonable  appearance  of  danger."  This  instruc- 
tion, taken  with  the  other,  fully  states  the  law,  and  the  court 
orrcd  in  not  giving  it.  Magnrss  v.  State,,  07  Ark.,  r)04,  rA)  S. 
V  t,  :.'.)  S.  W.,  520.     In  this  case  Mr.  dustice  Battle  said 

in  till  M|)iiiion  of  the  court:  "A  man,  when  threatened  with 
llie  I  'if  life  or  great  bodily  injury,  is  compelled  to  act  upon 
appciiiances,  and  determine  from  the  circumstances  surnmnd- 
iup:  him  at  the  time  as  to  the  course  ho  shall  pursue  to  protect 
hinisdf.  When  the  danger  is  pressing  and  innninent,  his  own 
safety  denumds  *  '.mediate  and  prnm])t  action.  Delay  may 
involve  the  loss  of  life  or  great  bodily  injury.  In  such  cases 
ho  is  from  necessity  the  judge  of  his  own  action  *  *  *  ^\ 
contrary  rule  would  make  the  law  of  self-defense  a  snare  and  a 
delusion.  It  woi  '  i  become  but  a  mockery  of  the  sacred  right  of 
self-proservation." 

For  the  error  in  refusing  to  give  the  third  instruction  the 
judj^uent  is  reversed,  and  the  cause  is  remanded  for  a  new 
trial. 


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126  AMERICAN  CRIMINAL  REPORTS. 

Jay  v.  State. 

41  Tex.  Crim.  Rep.  451—55  S.  W.  Rep.  335. 

Decided  January  31,  1900. 

Assault  Upon  a  Police  Officer:     A  town  marshal  a  peace  officer- 
Conviction  for  simple  assault — Evidence. 

1.  The  legislature  has  power  to  confer,  and  has  conferred,  on  town 
marshals,  the  authority  of  police  officers. 

%.  Upon  an  information  charging  an  aggravated  assault,  to-wit,  one 
made  on  a  police  officer  while  in  the  discharge  of  his  duties,  the 
accused  may  be  convicted  of  a  simple  assault. 

3.  Evidence,  that  while  a  police  officer  was  arresting,  'or  had  ar- 
rested, accused's  brother,  the  accused  struck  the  officer  with  his 
hand,  or  pushed  him  back,  and  commanded  him  not  to  interfere 
with  the  brother;  held,  sufficient  to  sustain  a  conviction. 

Appeal  from  the  Bosque  County  Court ;  Hon.  W.  B.  Thomp- 
son, Judge. 

Dan  Jay,  charged  with  an  assault  upon  a  marshal,  while  in 
the  discharge  of  his  official  duty,  was  convicted  of  assaislt  and 
appeals.    Affirmed. 

Word,  Dillons  <C  Word,  for  the  appellant. 

Robert  A.  John,  Assistant  Attorney  General,  for  the  State. 

• 

Davidson,  P.  J.  Appellant  was  convicted  of  a  simple  as- 
sault on  an  officer  alleged  to  be  in  the  discharge  of  his  official 
duties.  The  evidence  discloses  the  officer  was  the  marshal  ut' 
{in  incorporated  town.  It  is  contended  by  appellant  that  such 
(.fficer  is  not  a  peace  officer.  There  is  no  merit  in  this  conten- 
tion. Article  43,  ('ode  Cr.  Proc,  expressly  declares  the  nuir- 
^hal  of  an  incorporated  town  or  city  a  peace  officer.  It  avouM 
seem  that  appellant  contends,  because  this  court  has  held  that 
a  mayor's  or  city  court  has  no  jurisdiction  of  a  violation  of  the; 
Penal  Code  of  our  State,  that  therefore  the  marshal  of  such 
city  or  town  is  not  a  peace  officer.  This  does  not  follow.  The 
IcgisVture  -an  confer  authority  upon  such  policemen  or  niar- 
^lial  to  make  arrests,  Avhether  the  city  court  has  or  has  not  juris- 
diction of  such  offenses. 


For  cases  in  previous  volumes  on  any  subject,  see  Tabl3  of  Topics  in 
this  volume. 


GORDON  V.  COMMONWEALTH. 


127 


It  is  further  contended  that  because  the  information  charges 
the  cause  of  aggravation,  to-wit,  that  it  was  made  upon  a  peace 
officer  in  the  discharge  of  his  duty,  therefore  he  cannot  be  con- 
victed of  a  simple  assault.  There  is  more  plausibility  than 
nurit  in  this  proposition.  The  question  has  been  decided  by 
tliis  court,  in  Foster  v.  State,  25  Tex.  App.,  543,  8  S.  W.,  GG4, 
adversely  to  appellant's  contention.  The  particular  ground  of 
aggravation  in  the  Foster  Case  was  that  the  assault  was  upon  a 
cliild.  We  see  no  diffrrence  in  the  reasoning  of  the  two  cases, 
and  we  think  the  analogy  is  complete. 

The  evidence  is  sufficient.  When  the  officer  arrested  or 
atteiiijited  to  arrest  appellant's  brother,  he  (appellant)  either 
struck  the  officer  with  his  hand,  or  pushed  him  back,  and  com- 
niandod  him  not  to  interfere  with  his  brother. 

The  judgment  is  affirmed. 


GoRDOX  V.  Commonwealth. 


24  Ky.  Law  Rep.  552—69  S.  W.  Rep.  727. 

Decided  June  14.  1902. 

Assault:     Xecessity  of  instructions  on  sudden  heat  and  self-defense — 
Charge  cf  malicious  shooting — Evidence. 

Where  the  evidence  did  not  show  previous  ill-will,  but  that  of  a  sud- 
den salcon  brawl,  In  which  the  accused  drew  a  pistol  after  being 
attacked  by  a  negro  with  an  ax  handle,  and  that  another  person 
in  an  effort  to  disarm  accused  was  shot  in  the  foot, — held  that 
the  court  should  have  instructed  the  jury,  on  the  theories  of 
sudden  heat    without  malice,  and  of  self-defense. 

A|)]ieal  from  Circuit  CJourt,  Jefferson  County,  Criminal 
Division. 

Jo-<se  Gordon  convicted  of  malicious  shooting  and  wounding, 
appeals.    Reversed. 

E.  E.  McKay,  for  the  appellant. 

C.  J.  Pratt  and  McKenzie  Todd,  for  the  Commonwealth. 


■■\^' 


^^f 


ai 


^ 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 

this  volume. 


128 


AMERICAN  CRIMINAL  REPORTS. 


'::''. i 


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III 


BuRXAM,  J.  The  aiiiH'llaiit,  Jesse  Gordon,  was  convicted  l)y 
a  jury,  and  sentenced  to  contlnenient  to  the  penitentiary  f(n< 
one  year,  on  the  charge  of  having  nmlicionsly  shot  and  wounded 
Richard  Murphy. 

The  t(  ^-liniony  for  the  Commonwealth  is  to  the  oflfeet  that  the 
accused  liecaiiie  involved  in  a  tight  with  a  nund)er  of  ot lid- 
parties  in  Frank  Kernan's  saloon,  in  which  lie  knocked  down  ;i 
boy,  and  a  few  minutes  afterwards  drew  a  pistol  upon  a  nciiio 
man,  who  was  armed  with  an  ax  handle,  wlioronjion  the  pmsc- 
cuting  witness,  Richard  ^.Murjjhy,  told  him  to  ])ut  up  his  pisidl. 
The  accused  then  ])rescnt(  <1  his  pistol  at  the  breast  of  ^lurjihy. 
Murjjhy  knocked  the  pistol  down  with  his  hand  just  as  it  wms 
fired,  the  hall  going  through  his  foot.  The  testimony  for  I  ho 
defendant  was  to  the  eifect  that  there  was  a  general  fight  in  llic 
saloon,  and  that  a  negro  man  attacked  defendant  with  an  nx 
handle;  that  defendant  drew  his  pistol,  and  ^^furphy  intcrfen  .1, 
and  undertook  to  disarm  the  accused,  gras])ing  his  hand,  and 
in  the  scuiHe  for  the  possession  of  the  pistol  it  was  accidentally 
discharged,  intiicting  the  wound  coni])huncd  of;  that  the  shuot- 
ing  of  ^Inrpliy  was  accidental;  and  that  there  had  bee:,  previmis 
to  that  time  no  bad  T'lod  bttween  them. 

The  following  instructions  were  given  to  the  jury: 

"The  jury  are  instructed  that  if  they  believe,  from  all  the 
evidence  in  this  case,  to  the  exclusion  of  every  reasonable  dmilit, 
that  in  this  county,  and  before  the  finding  of  this  indictment, 
the  accused,  Jesse  Gordon,  did  with  a  pistol  loaded  with  lea<loii 
bullet  or  other  hard  and  combustible  substances,  unlawfully, 
wilfullv  and  feloniouslv  shoot  at  and  wound  Kichard  Muriihv  in 
the  foot,  with  the  malicious  and  felonious  intent  then  and  ther;; 
to  kill  him,  and  from  which  shooting  and  wounding  death  did 
not  ensue,  then  the  jury  should  find  the  accused  guilty  as 
charged  in  the  indictment,  and  fix  his  punishment  at  confine- 
ment in  the  penit^.iiiary  for  not  less  than  one  year  or  more 
than  five  years,  in  iheir  discretion." 

(2)  "If  the  jury  believe  from  all  the  evidence  in  the  case 
that  the  shooting  of  Richard  Murphy  by  Jesse  Gordon,  if  he 
was  so  shot,  was  done  by  accident  and  misadventure  on  the  part 
of  said  .csse  Gordon,  the  jury  should  find  the  accused  not 
guilty. 

(3)  "The  law  presuuics  the  innocence  of  the  accused,  and  it 


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FURLOUGH  V.  STATE. 


129 


is  the  duty  of  the  jury  to,  if  tncy  can  reasonably  do  so,  recon- 
cile !uul  havMionizc  all  <jf  the  facts  and  circumstances  of  tlio 
case  witli  tliat  prosuiiiption;  and  if,  upon  the  whole  case,  the 
jury  entertain  a  reasonable  doubt  of  the  guilt  of  the  accused, 
or  of  any  material  fact  necessary  to  constitute  his  guilt  of  the 
ofl'ense  charged  in  the  indictment,  they  should  give  bim  the 
bcnctit  of  that  doul)f,  and  find  him  not  guilty." 

1'hcre  was  no  evidence  of  previous  bad  blood  between  Murphy 
ami  tlie  accused.  In  fact,  all  the  testimony  conduces  to  show 
tliat  a  Ijrawl  suddcjily  brnko  out  among  the  parties  in  the  saloon, 
without  any  evidence  of  malice,  and  tiuit  in  the  fight  appcHant 
Wiis  attacked  by  a  negro  with  an  ax  handle,  and  that  when  ho 
drew  liis  pistol  ]Mur[)liy  attempted  to  disarm  bim.  Under  these 
circnnistanees,  we  are  of  the  opinion  that  the  trial  court  should 
not  only  have  instructed  the  jury  upon  the  theory  that  the  shoot- 
iiie'  was  in  sudden  heat  and  passion,  and  without  previous 
iiiiiliee,  l)nt  also  upon  the  theory  of  self-defense,  in  addition  to 
the  instructions  actually  given. 

For  reasons  indicated,  the  judgment  is  reversed,  and  cause 
rcuiaudcd  for  a  new  trial  consistent  with  this  opinion. 


FcnT.ouGii  v.  State. 

I  Texas— Court  of  Criminal  Appeals— 65  S.  W.  Rep.  1069. 

Decided  December  18,  1901. 

Assault   with    Intent    to    Commit    MunnEB:     Arrest — Self-defense — 

Aggravated  assauU. 

A  deputy  sheriff  having  a  warrant  for  the  arrest  of  "Furlough"  ap- 
proached two  persons,  as  they  were  moving  away  from  him,  and 
called  to  them — "Hold  on;"  and  on  ascertaining  that  their  names 
were  John  Furlough  and  Will  Furlough,  said:  "I  will  have  to 
take  both  of  you  to  the  court,  so  that  the  proper  man  can  be 
IdenlifiRd  as  the  man  wanted;"  whereupon  Will  Furlough  said: 
"The  hell  you  will:"  and  shot  at  him,  and  fired  several  times 
again  as  the  officer  walked  away,  the  officer  not  having  made 
any  attempt  to  arrest  either  one  of  them — held  that  the  issue  of 


For  cases  in  previous  volumea  on  any  subject,  see  Table  of  Topics  In 
this  volume. 

Vol.   XIII— 9 


/fJ 
%>  If. 


yi 


*"ii 


130 


AMERICAN  CRIMINAL  REPORTS. 


'ir:^ 


m 


self-defense  was  not  raised  by  the  evidence;   nor  was  that  an 
aggravated  assault. 

Appeal  from  District  Court,  Bowie  County;  Hon.  J.  ^L 
Talbot,  Judge. 

John  Furlough  convicted  of  assault  with  intent  to  murder, 
appeals.    Affirmed. 

Robert  A.  John,  Assistant  Attorney  General,  for  the  State. 

Davidson,  P.  J.  Appellant  was  convicted  of  an  assault 
with  intent  to  murder,  and  his  punishment  assessed  at  contiue- 
ment  in  the  penitentiary  for  a  term  of  two  years. 

He  criticises  the  charge  of  the  court  in  failing  to  submit  the 
issue  of  self-defense.  Under  the  testimony  as  presented  by  the 
recordj'this  was  not  error.  T\w  assaulted  party,  Anderson,  a?i 
deputy  sheriff,  went  to  the  place  where  appellant  was  with  ;i 
warrant  for  the  arrest  of  a  party  by  the  name  of  Furlougli, 
whose  Christian  name  was  not  inserted  in  the  warrant,  and 
found  appellant  and  another  party,  who  proved  to  be  appellant's 
brother.  As  he  a])prnached  the  parties,  appellant  remained, 
while  his  brother  stepped  into  the  house.  Appellant  started  to 
move  away,  and  the  deputy  sheriff  said,  *'IIold  on."  Appellant 
stopped,  and,  upon  inquiry  as  to  the  name  of  himself  and 
brother,  informed  him  that  his  name  was  John,  and  his 
brother's  name  was  Will,  both  having  the  surname  of 
Furlough.  The  deputy  said,  ''I  will  have  to  take  both  of  you  t  > 
the  court,  so  that  the  proper  man  can  be  identified  as  the  man 
wanted."  Will  Furlough  remarke<l  to  the  deputy  sheriff,  ''The 
hell  you  will;"  and  phot  him  with  a  pistol,  and  fired  sover:il 
other  ?hots  at  him.  Anderson  turned  and  walked  away.  As  li" 
was  walking  away,  going  out  of  the  yard,  defendant  fired  twn 
or  three  shots  at  him. 

This  testimony  does  not  raise  the  issue  of  self-defense. 
Defendant  testified  in  his  own  behalf,  and  stated  he  did 
nut  fire  any  shots  at  the  officer  at  all.  AVhatever  nniy 
have  been  the  issues  presented  by  this  testimony  as  to 
the  difficulty  l>etween  the  deputy  sheriff  and  Will  Furlough, 
it  does  not  arise  in  this  case,  from  the  fact  that  the  officer 
was  leaving  the  scene  of  the  difficulty,  and  had  abandoned  all 
attempt  to  arrest  defendant  or  his  brother.  At  no  time  lui'l 
the  officer  made  an  arrest  or  attempt  to  arrest.    lie  had  notified 


KIMBALL  ET  AL.  v.  STATE. 


131 


the  jiartics  ho  intended  to  take  them  to  court,  but  had  not  dona 
so,  liut  had  abandoned  this,  and  was  leaving  the  scene,  at  the 
time  (Ict'endant  fired  the  shots.  Nor  do  we  believe  the  question 
(if  iingravated  assault  was  suggested  by  this  testimony.  Wo 
(Iceiii  it  unnecessary  to  go  into  the  question  of  arrest  and 
attempted  arrest,  under  the  peculiar  facts  of  this  case  as  above 
stated. 

Tlio  evidence  justified   the  conviction.      The   judgment   is 
affirmed. 


KiMBALI.   ET   AL.    V.    StaTE. 

112  Ga.  541—37  S.  E,  Rep.  886. 

Decided  January  24,  1901. 

AssAVi.T  WITH  Intent  to  Co.mmit  Mvrder:  Duty  of  the  judge  on  his 
own  motion  to  instruct  as  to  the  law  of  manslaughter — Specific 
criminal  intent. 

S;m.mons,  C.  J. — 1.  Upon  the  trial  of  one  accused  of  assault  with  intent 
to  murder,  where  the  evidence  for  the  accused  tends  to  ghow  that 
there  was  a  mutual  combat  between  the  parties,  the  law  of  man- 
slaughter, as  bearing  upon  the  question  whether  the  accused 
should  be  convicted  of  a  lesser  offense  than  that  expressly  charged 
in  the  indictment,  is  necessarily  involved;  and  it  is  the  duty  of 
the  judge,  whether  requested  so  to  do  or  not,  to  charge  the  jury 
upon  this  subject,  and  a  failure  to  do  so  is  error. 
2,  A  specific  intent  to  murder  is  an  essential  Ingredient  of  the  crime 
of  assault  with  intent  to  murder;  and  where  one  is  charged,  as 
principal  in  the  second  degree,  with  assault  with  intent  to  mur- 
<Ier,  he  cannot  be  convicted  unless  it  be  shown  that  he  not  only 
aided  in  the  act,  but  also  participated  in  the  murderous  design. 
ClarK,  Ci.  Law,  89.  90. 
(Syllabus  by  the  Court.) 

Evrov  to  Superior  Court,  Bibb  County;  Hon.  W.  II.  Felton, 
Jr.,  -Imige. 

Julius  Kimball  and  others  convicted  of  assault  with  intent  to 
conunit  murder;  Kimball  brings  error.    Reversed. 

Joiiu  R.  Cooper  and  Ilamian  Brasch,  for  the  plaintiff  in 
error. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


132 


AMERICAN  CRIMINAL  REPORTS. 


Hope  Polliill,  Solicitor  General,  for  the  State. 


i^' 


Pku  Cueiam.     Jiulgnient  reversed, 
curring. 


All  the  Justices  cnn- 


NoTK. — Trial  below  December  27,  1900 — Argued  in  Supreme  Court 
January  21,  1901— Reversed  January  24,  1901— Total  28  days. 

Note  (by  J.  F.  G.)— The  doctrine,  that  a  specific  intention  to  de- 
stroy life  is  an  essential  clemeut  of  the  crime  of  assault  with  intent 
to  commit  murder  is  supported  by  many  authorities,  and  has  received 
attention  in  a  previous  vohime  of  these  Reports.  See  11  Am.  Criiu. 
Rep.  15.)  and  156. 

An  Arkansas  Authority. — In  Chrisman  v.  State,  54  Ark.  832,  15  S. 
W.  llep.  SS9,  decided  Feb.  28,  1891,  the  Court  rendered  the  foUowiiij^ 
instructive  opinion: 

Ma.nsI'Ield,  J.  The  appellant  was  convicted  of  an  assault  with  In- 
tent to  kill  and  murder  F.  J.  Stanfield.  The  statute  under  which  the 
indictment  was  found  declares  that  "whoever  shall  feloniously,  will- 
fully, and  with  malice  aforethought  assault  any  person,  with  Intent 
to  murder  or  kill,  *  *  *  shall,  on  conviction  thereof,  be  impris- 
oned in  the  penitentiary  not  less  than  three  nor  more  than  twenty- 
cue  years."  Mansf.  Dig.  §  1567.  It  has  been  frequently  held  by  this 
court  that  an  indictment  under  this  section  of  the  criminal  law  cannot 
be  sustained  unless  the  evidence  would  have  warranted  a  convict  iin 
for  murder,  if  death  had  ensued  from  the  assault  charged  to  have  betu 
committed.  Lacefield  v.  State,  34  Ark.  275,  and  cases  there  cited. 
But  it  has  never  been  ruled  here  that  such  evidence  will  in  every  en:  3 
be  sufficient.  On  the  contiary,  the  decision  in  the  case  of  Laceflehl  c. 
State,  cited  above,  and  that  in  Scott  v.  State,  49  Ark.  156,  4  S.  W.  Rep. 
750,  both  distinctly  recognize  the  doctrine  laid  down  by  Bishop,  tlmt 
an  attempt  to  commit  a  crime,  such  as  the  attempt  charged  in  this 
indictment,  is  an  offense  consisting  of  two  elements, — "an  evil  intent 
and  a  simultaneous  resulting  act."  Commenting  on  this  class  of 
crimes,  Mr.  Bishop  says:  "When  we  say  that  a  man  attempted  to  do 
a  thing,  we  mean  that  he  intended  to  do,  specifically,  it;  and  iiro- 
ceeded  a  certain  way  in  the  doing.  The  intent  in  the  mind  covers  the 
thing  in  full;  the  act  covers  it  only  in  part.  Thus,  to  constitute  mur- 
der, the  guilty  person  need  not  intend  to  take  life;  but,  to  constitute 
an  attempt  to  murder,  he  must  so  intend.  *  *  •  The  intent  must 
be  specific  to  do  some  act  which,  if  it  were  fully  performed,  would  con- 
stitute a  substantive  crime.  Therefore  *  ♦  ♦  general  malevolence 
is  not  sufficient,  even  though  of  a  sort  which,  added  to  the  appropriate 
act,  would  constitute  an  ordinary  substantive  offense."  After  fun  Iter 
comment  on  this  subject,  the  same  author  says:  "The  doctrine  of  an 
intent  in  law,  differing  from  the  intent  in  fact,  is  not  applicable  to 
these  technical  attempts;  and  if  the  prisoner's  real  purpose  were  n;t 
the  same  which  the  indictment  specifies,  he  must  •  *  •  be  ac- 
quitted; ♦  *  •  for  the  charge  is  that  the  defendant  put  forth  an 
act  whose  criminal  quality  or  aggravation  proceeded  from  a  specially 


KIMBALL  ET  AL.  v.  STATE. 


133 


evil  intent  prompting  It,  and  In  reason  we  cannot  first  draw  an  evil 
Intent  from  an  act,  and  then  enhance  the  evil  of  the  act  by  adding  this 
intent  back  to  it."  1  Bish.  Crim.  Law,  §§  729-731,  735.  In  LacefieU's 
Case,  34  Ark.  stipra,  the  court  said  that,  while  "it  is  true  that  every 
person  is  presumed  to  contemplate  the  ordinary  and  natural  conse- 
quences of  his  acts,  such  presumption  does  not  arise  where  the  act 
fails  of  effect,  or  is  attended  by  no  consequences;  and,  where  such  act 
is  charged  to  have  been  done  with  a  specific  intent,  such  intent  must 
to  proved,  and  not  presumed  from  the  act."  As  an  application  of  this 
doctrine,  it  was  held  in  that  case  that  where  one,  "intending  to  kill 
A.,  shoots  and  wounds  B.,  •  ♦  ♦  he  -cannot  be  convicted  of  an 
assault  with  intent  to  kill  B."  In  Scott  v.  State,  49  Ark.  156,  4  S.  W. 
Rep.  750,  the  defendant  was  charged  with  an  assault  upon  one  Ban- 
nister with  intent  to  kill  and  murder  him;  and  the  trial  court  in- 
structed the  jury  that,  if  they  believed  from  the  evidence  that  the 
defendant  shot  at  some  one  other  than  Bannister,  or  if  they  had  "a 
reasonable  doubt  as  to  whom  the  defendant  intended  to  shoot,"  they 
should  acquit  the  defendant,  unless  they  "further  found  from  the  evi- 
dence that  the  defendant  shot  into  the  house  of  Bannister,  and  into  a 
crowd  where  he  (Bannister)  was  at  the  time  situated,  without  provoca- 
tion, and  when  all  the  circumstances  of  the  shooting  showed  an  aban- 
doned and  wicked  disposition,  and  a  reckless  disregard  of  human 
life."  Btit  this  court  held  that,  as  the  "essence"  of  the  crime  charged 
was  the  specific  intention  to  take  the  life  of  Bannister,  it  was  neces- 
sary to  prove  the  intent  laid  in  the  indictment  to  the  satisfaction  of 
the  jury;  and  the  judgment  was  reversed  on  the  ground  that  the  con- 
cluding portion  of  the  charge,  quoted  above,  was  "liable  to  mislead 
the  jury  into  the  belief  that  proof  of  the  particular  intent  alleged 
could  be  dispensed  with." 

In  this  case  the  evidence  shows  that  the  defendant  assaulted  Stan- 
field  with  a  knife,  inflicting  upon  the  person  of  the  latter  a  danger- 
ous wound.  The  testimony  furnishes  no  description  of  the  knife. used 
by  the  defendant,  but  from  the  nature  of  the  wound  received  by  Stan- 
fleld,  and  from  what  Is  said  of  the  knife,  it  may  well  be  inferred  that 
it  was  a  deadly  weajran.  There  was  evidence  showing  that  the  de- 
fendant was  intoxicated  at  the  time  of  making  the  assault,  and  that 
he  had  been  drinking  to  excess  for  about  four  weeks.  It  was  also 
shown  that  he  had  been  intemperate  for  several  years,  and  one  of  the 
witnesses  stated  that  when  intoxicated  he  seemed  to  be  irrational,  and 
had  the  appearance  of  "a  raving  maniac."  Another  stated  that,  for  a 
week  or  more  before  the  assault  on  Stanfleld,  the  defendant  did  not 
appear  to  know  "what  he  was  about."  Others  described  his  condition 
during  the  same  time  by  saying  that  they  did  not  think  he  "was  at 
himself."  Several  witnesses,  however,  on  the  part  of  the  state,  testi- 
fied that,  although  drunk  at  the  time  of  the  assault,  the  defendant  did 
net  api)ear  to  be  irrational.  The  court,  against  the  defendant's  objec- 
tions, gave  to  the  jury  the  following  instruction: 

"(5)  If  the  jury  believe  from  the  evidence  that  the  defendant  as- 
saulted and  stabbed  the  prosecuting  witness  with  a  knife  calculated 


.  I  tif 


s-rt;  i 


Si  '".IM 


\i":i 


1 

1 

.  i 

iii 

134 


AMERICAN  CRIMINAL  REPORTS. 


ordinarily  to  produce  death,  without  provocation,  the  law  preaiinios 
that  he  did  it  with  the  felonious  design  to  kill,  and  the  burden  of 
proof  is  on  the  defendant  to  show  to  the  contrary,  either  by  proof  on 
the  part  of  the  State  or  defense." 

Tested  by  the  ruling  of  this  court  In  the  cases  cited  above,  and  by 
numerous  decisions  in  other  States  having  statutes  similar  to  that  on 
which  this  indictment  is  based,  this  Instruction  was  erroneous. 
Whether  the  defendant  assaulted  Stanfleld  with  the  specific  in  lent 
alleged  in  the  Indictment  was  a  question  of  fact  which  it  was  his  rl^lit 
to  have  determined  by  the  jury  upon  the  whole  evidence  In  the  cuuse. 
But,  under  the  instruction  copied  above,  the  jury  were  at  liberty  to 
presume  the  existence  of  a  felo.nious  intent  to  kill,  from  the  facts 
mentioned  in  the  court's  charge,  without  considering  any  others.  We 
do  not  hold  that  it  would  have  been  improper  to  instruct  the  jury 
that  the  defendant  should  be  presumed  to  have  intended  the  natural 
and  probable  consequences  of  his  act  in  stabbing  the  prosecuting  wit- 
ness. For  it  was  clearly  the  province  and  duty  of  the  jury  to  consider 
the  nature  of  the  weapon  used  by  the  defendant  and  his  manner  of 
using  it,  together  with  all  the  other  circumstances  of  the  case,  in  de- 
termining whether  the  assault  was  in  fact  committed  with  the  intent 
alleged  in  the  indictment.  1  Bishop  Crim.  Law,  sec.  735  and  note^. 
But  the  objectionable  charge  shifted  the  burden  of  proof  as  to  tlie 
question  of  such  intent,  which  would  still  remain  for  the  determina- 
tion of  the  jury,  although  they  believed  that  the  facts  recited  by  llie 
court's  instruction  had  been  established  by  the  evidence.  See  Oi/le- 
tree  v.  State,  28  Ala.  693;  State  v.  ^'eal,  37  Me.  468;  1  Starkle,  Ev.  72; 
State  V.  Jefferson,  3  Har.  (Del.)  571. 

We  do  not  think  it  necessary  to  review  on  this  appeal  the  other  rul- 
ings of  the  circuit  court  complained  of  by  the  defendant.  But,  as  tlie 
cause  must  be  remanded,  we  think  it  proper  to  say  that  althouf;;h  vol- 
untary drunkenness  cannot,  as  the  jury  were  told  by  the  court,  excuse 
the  commission  of  a  criminal  act,  yet,  where  a  person  is  accused  of  a 
crime  such  as  can  be  committed  only  by  doing  a  particular  thing  with 
a  specific  intent,  it  may  be  shown  that,  at  the  time  of  doing  the  tiling 
charged,  the  accused  was  so  drunk  that  he  could  not  have  entertained 
the  intent  necessary  to  constitute  the  offense.  1  Bish.  Crim.  Law,  § 
413.  Then  in  Wood's  Case.  34  Ark.  341,  it  was  held  that  "if  one  at 
the  time  of  taking  property  is  so  under  the  influence  of  intoxicating 
liquor  that  a  felonious  intent  cannot  be  formed  in  his  mind,  he  is  not 
guilty  of  larceny."  The  law  on  this  subject  is  further  illustrated  by 
a  ruling  in  Casat  v.  State,  40  Ark.  511.  In  the  latter  case  it  was  held 
that  voluntary  intoxication  cannot  reduce  murder  in  the  first  degree 
to  a  lower  degree  of  homicide,  unless  it  is  accompanied  by  a  tem- 
porary destruction  of  reason;  and  that  it  is  not  sufflcient  to  prove  a 
condition  of  mere  nervous  excitement  produced  by  drinking.  For  the 
error  we  have  Indicated  the  judgment  must  be  reversed,  and  the  cause 
remanded  for  a  new  trial. 


1.  If  ar 

in'td 

2.  The 

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3.  The 

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4.  The 

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For  caa 
this  volul 


ATKINS  V.  STATE. 


135 


Actual  intenUon  to  destroy  life  is  not  a  necessary  essential  to  the 
crime  of  murder;  but  it  is  to  the  crime  of  assault  with  intent  to  com- 
viit  murder. — Approved  instruction. — In  People  v.  Mendenhall  (Cal.), 
C7  Pac.  Rep.  325  (decided  Jan.  1^,  1902),  the  court  said: 

"It  is  next  contended  that  the  court  erred  in  refusing  to  instruct  the 
jury,  as  requested,  that: 

"  'While  intent  to  take  life  is  net  essential  to  constitute  mrrder,  yet, 
to  constitute  an  assault  with  intent  to  commit  murder,  the  wrongdoer 
must  si)eciflcally  intend  to  take  life.  You  cannot  find  this  defendant 
guilty  simply  because  he  would  have  been  guilty  of  murder  had  the 
prosecuting  witness  died.' 

"This  is  a  correct  statement  of  the  law.  and  its  refusal  would  have 
been  error  entitling  the  dofendant  to  a  reversal  of  the  judgment  if  the 
same  i)roposition  had  net  been  plainly  stated  in  other  instructions 
given  by  the  court,  and  couched  in  language  which  in  a  conceivable 
case  was  much  more  appropriate  than  the  language  quoted." 


AtkiiVs  v.  State. 

Texas— Court  of  Criminal  Appeals — 53  S.  W.  Rep.  858. 

Decided  November  15.  1899. 

AssAii.T  WITH  INTKNT  TO  COMMIT  Mi'UDKB:  Spcciftc  intent — Failure  in 
effort  no  criterion — Deadly  tveapon — Circumstances  and  ivords 
showing  intent. 

1.  If  an  assault  is  actuated  by  n.alice  and  is  made  with  the  si)C(iric 

intention  to  kill,  as  a  general  rule,  the  offense  is  complete. 

2.  The  weapon,  or  means  used,  should  be  considered;   and  when  the 

v.eapon  used  is  such  as  ordinarily  would  not  produce  death,  the 
intention  to  kill  is  net  shown,  without  proof  of  other  facts. 

3.  The  lack  of  power  to  kill,  as  where  one  is  prevented  from  so  doing, 

does  not  sliow  lack  of  intention. 

4.  The  aitions,  words,  etc.,  shown  by  the  evidence  justified  a  verdict 

of  guilty. 

5.  Tlie  evidence  did  not  require  an  instruction  as  to  simple  assault. 


Appeal  from  the  District  Court,  Nacogdoches  County;  TTon. 
Tom  ( '.  Davisj  Judge. 

Williiiui  Atkins,  convicted  of  an  assault  with  intent  to  mur- 
der, appeals.    Affirmed. 

Jiohcrt  A.  John,  Assistant  Attorney  General,  for  the  State. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


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136 


AMERICAN  CRIMINAL  REPORTS. 


Davidson,  P.  J.  Appellant  was  convicted  of  nasault  w'nU 
intent  to  uuirdcr,  and  given  llirco  years  in  the  i)onitentiary. 
Ho  reserved  two  bills  of  exception, — the  tirst,  with  reference 
to  the  action  of  the  conrt  sulniittinp:  tiie  issue  of  assault  with 
intent  to  nuirdcr;  and  the  second,  to  the  failure  of  the  court  to 
submit  the  issue  of  simple  assault. 

The  substance  of  the  evidence  is  that  appellant  claimed  the 
assaulted  party  owed  him  a  dullar.  This  was  denied.  On  sev- 
eral occasions  prior  to  the  time  of  the  aKeged  assaidt,  ai)i>ellaiit 
deniiinded  ]iaym(  nt  of  the  dollar,  and  threatened  in  each 
inshince  to  kill  IJlaekman,  the  assaulted  i)arty,  if  he  failed  \n 
pay  saitl  dollar.  On  the  morning-  of  the  trouble  out  of  which 
this  prosecution  arose,  ajipellant  overtook  Blacknian  on  the 
side  walk,  and  began  cursing  him  and  a])i»lying  vile  epithets, 
and,  while  walking  down  the  street,  kgan  an  attack  npnn  him 
with  a  knife,  stabbing  him  under  the  shoulder  blade.  Black- 
man  caught  him  at  this  juncture,  and  prevented  further  use  nf 
the  knife,  and  finally  succeeded  in  getting  away  from  bini. 
Apjielhuit  told  him  at  the  time  that,  if  he  did  not  ])ay  the  dollar, 
he  would  kill  him,  and,  after  Blacknnm  had  gotten  away  frmn 
him  a  short  distance,  again  threatened  to  kill  him,  and  said  lie 
would  do  so  before  night.  It  is  shown  by  several  witnesses 
that  ajipellant  had  frequently  threatened  to  take  the  life  i>( 
Blacknuui  because  of  this  failure  to  pay  the  dollar  claimed  to 
be  due.  The  stab  was  not  a  dangerous  wound.  It  is  und(  r 
this  state  of  case  that  appellant  suggests  the  errors  mentioned, 
as  reeei'ved  in  his  bills  of  exception. 

It  is  not  necessary  the  Avoimd  should  be  a  dangerous  one  to 
constitute  an  assault  with  intent  to  murder.  If  the  party  makes 
an  assault  Avith  the  specific  intent  to  kill,  and  is  actuated  by 
malice  in  doing  so,  that  offense  is  usually  complete.  Of  course, 
the  weapon  or  means  used  by  which  it  is  sought  to  carry  out  the 
design  may  be  looked  to,  and  where,  as  in  this  case,  the  weapon 
is  one  not  shown  to  be  usually  calculated  to  inflict  death,  \W 
intention  must  be  proved  by  other  facts.  As  was  said  in  Hal- 
ton's  Case,  31  Tex.  Cr.  R.,\'>Sf,,  21  S.  W.,  679,  "it  would  be  a 
monstrous  doctrine  to  "hold  that,  because  the  accused  did  not 
hAvo  the  ability  to  kill,  therefore  he  did  not  intend  to  kill." 
Under  the  evidence  stated,  the  assault  with  intent  to  inurdcr 
"was  an  issue.    There  was  an  assault  made  upon  Blacknian  by 


ASSAILT 


For  caf 
this  volu; 


ALVAREZ  V.  STATE. 


137 


nppcllnnt  with  tho  kiiifo,  coupled  with  the  stntcmciit  that  lie 
init  iidcd  to  kill.  Wliilo  it  was  trno  he  was  })ivveuted  In-  Blaek- 
iiiiiii  from  further  use  of  the  knife,  this  did  not  operate  to 
relieve  appellant  of  the  offense  ho  was  seeking'  to  perpetrate,  lie 
li;id  already  made  the  assault  with  a  knite;  he  had  made  it  with 
the  intent  to  kill,  if  his  acts  and  statements  are  to  ^e  eredited; 
and  the  faet  that  he  was  prevented  from  earryin.i!'  out  his  desigii 
Would  make  no  difference.  Waits  v.  i^iiilc,  130  Tex.  A])p.,  533, 
17  S,  W.,  1!K)2,  and  authorities  there  citeil. 

The  issue  of  simple  assault  was  not  su^ested  h_v  the  testi- 
mony, and  the  court  did  not  err  in  refusing  to  so  charge. 

The  judgment  is  affirmed. 

None. — Approved  instruction  upon  proof,  of  intention. — In  Clarey  v. 
State,  fit  Neb.  CSS,  85  N.  W.  Rep.  897,  the  Court  said: 

"L;iKlly,  It  Is  urged  that  the  fourth  instruction  given  on  tlie  request 
cf  tho  State  is  erroneous.  It  reads:  'The  court  instructs  the  jury  that 
the  intent  with  which  an  act  is  done  is  a  mental  process,  and  as  such 
generally  remains  hidden  within  the  mind  where  it  is  conceived,  and 
i.^  rarely,  if  ever,  susceptible  of  proof  by  direct  evidence,  but  must  be 
inferred  or  gathered  from  the  outward  manifestations  by  the  words 
or  acts  of  the  party  entertaining  them,  and  the  facts  or  circumstances 
surrounding  or  attendant  upon  the  assault  with  which  it  is  charged 
to  be  connected,'  The^  criticism  is  upon  the  use  of  the  word  'must.' 
The  court,  by  employing  the  word,  merely  intended  to  convey  to  the 
jury  that  the  intent  of  a  jierson  is  deducible  from  his  word-s  and  con- 
duct only,  and  net  that  the  jury  were  obliged  to  infer  the  unlawful 
intent  in  the  case.  The  instruction  was  doubtless  co|)le(l  from  the 
opinion  in  Botsch  v.  State,  43  Neb.  501,  61  N.  W.  730.  It  follows  that 
the  judgment  must  be,  and  it  is,  affirmed." 


Alvauez  v.  State. 

Texas— Court  of  Criminal  Appeals— 58  S.  W.  Rep.  1013. 

Decided  October  17.  1900. 

Assault  wrrii  Intent  to  Ml-rdek — Approved  Instructions:    Accidental 

Shooting — Res  gestae. 

1.  The  following  instruction  is  approved: 

"Should  you  believe  that  the  said  pistol  was  discharged  by  the 
defendant,  but  have  a  reasonable  doubt  as  to  whether  the  same 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  iu 
this  volume. 


fi  T 


138 


AMERICAN  CRIMINAL  REP'^TITS. 


was   discharged  accidentally,   you   will    find   the   defendant  not 
guilty." 

2.  The  following  Instruction  Is  approved: 

"An  aKaault  becomes  and  is  an  assault  with  intent  to  murder 
when  It  Is  fojnniltted  with  a  deadly  weapon  and  with  intent  to 
kill  the  person  assaulted,  done  unlawfully  and  intentionally  wllli 
malice  afinethought,  and  under  such  circumstances  that,  had 
death  resulted  therefrom  to  the  person  assaulted,  the  killing 
would  have  bee.i  murder." 

3.  Failiin'  to  instruct  on  the  law  of  negligent  homicide  Is  not  error, 

wliero  Cic  defense  is  that  of  accidental  shooting. 

4.  It  is  a  i)art  of  the  res  gestae,  to  show  that  the  shot  intended  to 

wound  the  prosecutrix,  struck  other  parties. 

Appeal  fniiii  the  District  Court,  El  Paso  County;  Hon.  A. 
M.  Waltliiill,  Judge. 

Pablo  A  Ivan/,,  convicted  of  an  assault  with  intent  to  niurder, 
nppcals.    Ailirnied. 

A.  G.  Wilcox,  for  the  appellant, 

lioht.  A.  John,  Assistant  Attorney  General,  for  the  Statu. 

Hexdkksox,  J.  Appellant  was  convicted  of  an  assault  with 
intent  to  murder,  and  his  punishment  assessed  at  confinciiiciit 
in  the  penitentiary  for  a  term  of  five  years.    Hence  this  appeal. 

Appellant,  by  Jbill  of  exceptions,  questions  the  action  of  the 
court  in  the  instruction  given  on  the  accidental  discharge  of' 
the  pistol,  and  in  refusing  to  give  his  special  requested  instruc- 
tion on  the  same  subject.  The  charge  given  is  as  follows: 
"Should  you  believe  that  the  said  pistol  was  discharged  by  tho 
defendant,  l)ut  have  a  reasonable  doubt  as  to  whether  the  sanio 
was  discharged  accidentally,  you  will  find  the  defendant  not 
guilty."  Tho  charge  requested  is  in  the  following  terms:  "If 
you  believe  ivom.  the  evidence  that  defendant's  pistol  was  acci- 
dentally discharged,  no  matter  how  discharged,  you  will  acquit 
him."  In  this  connection  appellant  criticises  the  charge  as 
given,  because  he  says  that  the  same  is  not  an  affirmative  charge, 
and  shifts  the  burden  of  proving  such  defense  upon  him,  to 
establish  the  same  beyond  a  reasonable  doubt.  We  do  not 
believe  the  charge  is  subject  to  this  criticism.  The  charge,  in 
effect,  told  the  jury  that  if  they  had  a  reasonable  doubt  as  to 
whether  or  not  appellant  intentionally  shot  the  prosecutrix,  or 
the  pistol  was  discharged  accidentally,  to  acquit  him ;  and  the 
burden  was  left  upon  the  State  by  a  direct  charge  in  that  cuii- 


ALVAREZ  V.  STATE. 


189 


iicptioii  to  prove  the  intcntionnl  shootin«»  beyond  a  rensonablo 
(Idiilit,  bccnusc  the  jury  were  instructed  that  if  they  entertained 
ii  r(ii6t)nabk!  doubt  whether  or  not  the  shot  was  diseliarged  acci- 
(k'litiilly  by  appellant,  as  contended  by  liini,  they  Avonhl  givo 
him  the  benefit  of  such  reasonable  doubt,  and  acquit  him.  The 
cliiiri;*'  is  more  favoral)le  to  defendant  than  that  asked  by  him, 
iuiisiimch  as  the  charj^e  re<pu'sted  required  the  jury  to  believe 
from  tln'  evidince  that  (k'fendant's  pistol  was  accidentally  dis- 
cliiiriifd,  liefore  they  would  fioquit  him,  whereas  the  charge 
^iv(  II  aiitlutrized  them  to  acquit  if  they  entertained  a  reason- 
alilt'  iliMibt  as  to  whether  the  pistol  was  discharged  accidentally. 
This  cluirge  was  approved  in  Wacfncr  v.  8tal,c,  35  Tex.  Cr.  It., 
25.1,  ,*};;  S.  W.,  124. 

Ai)]K'llant  also  contends  the  court  erred  in  failing  to  charge 
the  law  <if  negligent  homicide.  We  fail  to  see  from  the  evidence 
ill  this  case  any  authority  for  sucji  a  charge.  It  is  certainly  not 
cliiiir.cd  that  he  was  negligent  in  carrying  a  pistol  to  the  place 
where  the  alleged  assault  was  made.  If  there  was  any  negli- 
i-eiiee.  it  was  in  ]ncking  up  the  pistol  on  the  part  of  the  defend- 
iint  after  it  had  fallen  from  his  pocket,  according  to  his  theory, 
lint  here  we  fail  to  see  any  evidence  of  any  negligence  on  his 
\)i\\'\.  lie  testified  to  none  As  far  as  he  was  concerned,  tho 
pistol  tired  of  its  own  volition.  It  does  not  claim  to  have  acci- 
dentally touched  the  trigger  or  accidentally  to  have  jiulled  back 
the  lanniur,  but  his  testimony  would  indicate  a  case  of  spon- 
taneous combustion.  If  he  had  any  defense  at  all  on  this  line, 
it  was  the  accidental  discharge  of  the  pistol,  without  any  intent 
or  volition  on  his  part;  and,  as  wo  have  seen,  the  court  gave  a 
sntHeient  charge  on  this  subject. 

The  charge  of  tho  count  on  specific  intent  to  murder  was 
sufReieiitly  explicit,  and  we  do  not  believe  it  is  a  fair  criticism  to 
sulxlivide  the  charge  as  given  by  the  coui't,  as  is  done  by  counsel, 
on  the  subject  of  assault  with  intent  to  murder.  The  wholy 
cliarg<'  reads  as  follows:  ''An  assault  becomes  and  is  an  assault 
with  intent  to  murder  when  it  is  committed  with  a  deadly 
weapon  and  with  intent  to  kill  the  person  assaulted,  done  unlaw- 
fully and  intentionally  and  with  malice  aforethought,  and  under 
^uch  circumstances  that,  had  death  resulted  therefrom  to  the 
jierson  assaulted,  the  killing  would  have  been  murder."  This 
is  all  cue  charge,  and  is  to  be  taken  together,  and  is  a  correct 


f'. 


n 


K-J^i' 


%\ 


'M 


m 


II 


140 


AMERICAN  CRIMINAL  REPORTS. 


definition.  The  contention  of  appellant  to  the  effect  that  tlio 
court,  in  its  charge,  confined  an  assault  with  intend  to  murder 
to  an  assault  witli  express  malice,  even  if  it  he  conceded  tluit 
the  record  corrohoratcs  this,  we  do  not  think  can  be  complained 
of  bv  ap])cllant.     However,  we  do  not  think  the  charge  eli 


111 


inates  an  assault  upon  implied  malice. 

Xor,  in  our  opinion,  was  it  necessary  for  the  court  to  Hiiiir 
the  t(  stimony  with  reference  to  the  vshooting  of  Angel  Ynogoyci, 
and  A.  Alderete.  The  shot  Avhich,  according  to  the  tostimonv 
of  tlie  State,  was  intended  for  the  prosecutrix.  Miss  Logan, 
inflicted  a  wound  on  said  parties.  It  was  a  part  of  the  ros  gcsid" 
of  the  transaction,  and  there  Avas  no  occasion  on  the  part  of  thr 
court  to  limit  it.  He  w-as  tried  for  an  assault  with  intent  to 
murder  J\Iiss  Logan,  and  the  court's  charge  confined  tlie  jury  i(, 
tliat  siK'cific  ofl'ensc. 

We  have  examined  the  record  carefully,  and  in  our  <ipiiiiirii 
tl'o  I'ury  were  fully  authorized,  under  the  testimony,  to  find  the 
verdict  they  did. 

TliL're  lieing  no  errors  in  the  record,  the  judgment  is  in  all 
things  affirmed. 


Evans  v.  State. 

Texas— Court  of  Criminal  Appeals— 70  S.  W.  Rep.  4GC. 

Decided  October  21,  1903. 

AssAti.T  WITH  IxTEXT  TO  COMMIT  JIi'KDKR — Fuout:  Defendant's  ri'iht 
to  (jive  reasons  for  flight — Necessity  to  instruct  as  to  agoravated 
assault. 

1.  The   State  introducing  evidence  that  the  defendant,  pending  the 

'inosecution,  forfeited  his  bail  and  fled,  the  defendant  should 
have  been  permitted  to  show  his  reasons  for  such  flight. 

2.  "Wherever  a  criminative   fact  or  circumstance   is   placed   in  evi- 

dence against  a  party  accused  of  crime,  clearly  he  has  the  right 
to  exculpate  by  the  best  available  testimony  and  explain  the  in- 
culpatory fact." 

3.  Where  under  charge  of  assault  with  intent  to  murder,  there  was 

eviiieuco  of  a  difficulty  between  one  Wilson  and  defendant  and 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


EVANS  V.  STATE. 


141 


that  on  the  same  day  they  met  In  the  road,  and  Wilson,  while 
on  horseback,  attempted  to  ride  over  appellant,  who  was  on  foot, 
and  struck  at  appellant  with  a  knife,  and  that  thereupon  appel- 
lant shot  at  Wilson — held  that  the  court  should  have  Instructed 
t'.ie  jury  as  to  the  law  pertaining  to  aggravated  assault. 

Appeal  from  District  Court,  Burleson  County;  Hon.  E.  R. 
Sinks,  Judge. 

W.  E.  Evans  convicted  of  assault  with  intent  to  murder, 
I'pjicals.    lieversed. 

Searcy  &  Garrett,  for  the  appellant. 

Howard  Martin,  Assistant  Attorney  General,  for  the  State. 

D.vviDsfjx,  P.  J.  Appellant  was  convicted  of  assault  with 
iiitint  to  murder  F.  M.  Wilson,  and  his  punishment  assessed 
iit  ooiiliiiemont  in  the  penitentiary  for  a  term  of  seven  years. 
Pcndiiii:'  the  prosecution,  appellant  forfeited  his  bond.  His 
lliglit  was  used  as  evidence  against  him.  Ho  sought  to  explain 
this  flight  by  testimony  to  the  eifeet  that  at  the  court  at  which 
lie  w;is  to  1)0  tried,  and  at  which  he  forfeited  his  bond,  gathered 
the  friends  of  the  injured  party,  who  was  a  white  man  (appel- 
lant being  a  negro)  ;  that  he  was  informed  by  his  mother,  and 
perhiijis  (ithers,  that  his  life  was  in  danger  from  these  parties; 
and  tJKit  on  account  of  this  he  fled,  and  the  forfeiture  followed. 
This  tc-tiuiony  was  excluded  on  exception  by  the  State.  It 
i^lmuM  have  been  admitted.  Wherever  a  criminative  fact  or 
cirenni-tanco  is  placed  in  evidence  against  a  party  accused  of 
crime,  clearly  he  has  the  right  to  exculpate  by  the  best  avail- 
able testimony  and  explain  the  inculpatory  fact. 

We  believe  a  charge  on  aggravated  assault  should  liavc  been 
given  tlie^  ji'i'y-  There  had  Wen  a  meeting  in  the  morning 
between  the  parties,  when  Wilson  had  gone  into  the  room  where 
appelhint  was  in  bed.  Wilson's  visit  to  the  room  was  for  the 
]inr])()<e  nf  getting  some  tindnr  out  of  which  to  make  rafters. 
A])pelhiiit  asked  Wilson  not  to  pull  the  rafters  down  on  him. 
There  is  some  controversy  as  to  what  occurred  between  the  par- 
ties, luit  n])pellant's  contention  was  that  Wilson  was  rather  in- 
sulting in  his  language  and  conduct,  and  did  pull  the  timber 
down  (in  and  hurt  his  legs.  They  sejjarated.  Wilson  went  to  the 
Louse  b(  iiig  built,  and  appellant  arose,  dressed  himself,  and 
started  down  the  road.   Wilson  came  along,  and,  under  appcl- 


AMERICAN  CRIMINAL  REPORTS. 


lant's  tlicory,  undertook  to  ride  over  him,  appellant  being-  on 
foot,  and  Wilson  on  horseback,  and  struck  at  appellant  with 
a  knife,  whereupon  appellant  fired  two  or  three  shots.  The 
court  gave  self-defense,  but  under  this  state  of  case  a  charge 
on  aggravated  assault  should  have  been  given.  The  riding  of 
the  hor.se  against  appellant,  if  true,  was  an  assault,  ami. 
whether  Wilson  used  his  knife  or  not,  it  was  an  assault.  Tf 
the  knife  was  used  it  was  ar  aggravation  of  the  assault.  Tf 
Wilson  had  been  killed  because  of  his  riding  the  horse  again<t 
or  attempting  to  ride  the  horse  over  appellant,  it  wouid  have 
called  for  a  charge  on  manslaughter;  hence,  failing  to  kill,  the 
issue  of  aggravated  assault  results. 

For  the  two  errors  discussed  the  judgment  is  reversed,  and 
the  cause  remanded. 


ToM.ETT  v.  State. 

Texas— Court  of  Criminal  Appeals — 55  S.  W.  Rep.  335. 
Decided  January  31,  1900. 

Assault  with  Intent  to  Commit  Mcrdek — Conviction  fob  Aockavatkd 
Assaci.t:  Harmless  error  in  instruction — Definition  of  simple 
assault — Definition  as  to  tchat  is  a  deadly  weapon. 

1.  Even  though  the  evidence  would  not  call  for  an  instruction  as  to 
assault  with  intent  to  murder,  a  verdict  finding  the  accused 
guilty  of  an  aggravated  assault,  renders  such  instruction  haini- 
less. 

2.  The  Court's  definition  of  simple  assault  and  of  its  application  to 
the  case,  approved. 

3.  The  following  definition  as  to  a  deadly  weapon  approved:  "One 
which  from  the  manner  used  is  calculated  or  likely  to  produ(e 
death  or  serious  bodily  injury." 

Appeal  from  the  District  Court,  Eastman  County;  Hon.  M. 
R.  Lindsev,  Judge. 

Elmer  Tollett,  convicted  of  aggravated  assault,  apjx'al-'. 
.Vffinned. 

</.  E.  Thomas,  for  appellant. 

Itubert  A.  John,  Assistant  Attorney  General,  for  the  S.nto. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


TOLLETT    V.    STATE. 


143 


Brooks,  J.  Appellant  was  charged  by  indictment  with 
assault  -with  intent  to  murder,  was  convicted  of  aggravated 
assault,  and  his  punishment  assessed  at  two  years'  confinement 
in  the  county  jail. 

There  are  no  bills  of  exception.  Appellant's  first  ground  of 
Ms  motion  for  new  trial  is  "that  the  evidence  does' not  sustain 
the  conviction  of  aggravated  assault."  We  think  the  facts  are 
amply  suflicient  to  support  the  verdict, 

1  -^  L'ond  ground  is  that  the  court  erred  in  submitting  to 
the  jury  the  issue  of  assault  with  intent  to  murder  at  all,  for 
the  reason  that  the  evidence  did  not  autlK.rize  such  cliarge. 
Witliout  reviewing  the  facts,  we  do  not  think  this  position  is 
corn  it,  but  Ixdieve  the  evidence  authorized  the  suljinission  oi 
r.s.^n  lit  with  intent  to  murder.  Concede  appellant  is  correct  in 
this  contention ;  still  the  jury's  having  found  him  guilty  of  an 
aggravated  assault  eliminates  any  injury  to  appellant  by  reason 
of  any  supposed  error  in  the  charge.     Blake  v.  SlatCj,  3  Tex. 

App.,  r)Si. 

Appollaiit  also  comjdains  of  the  court's  charge  on  simple 
assault,  as  follows:  '*An  assault  may  also  be  committed  by 
the  use  of  any  dangerous  weapon,  or  the  semblance  thereof,  in 
an  angry  or  threatening  manner,  with  intent  to  alarm  another, 
under  circumstances  calculated  to  effect  that  object."  The 
court,  in  applying  the  principle  of  law  above  state<l,  used  this 
laiiauage:  "If  you  believe  from  the  evidence  that  defendant, 
at  the  time  and  place  charged  in  the  indictment,  or  in  the  pres- 
ence of  ;Mark  Tollett,  drew  a  pistol  in  an  angry  and  threaten- 
ing manner,  with  intent  to  alarm  the  said  ^lark  Toll(>tt,  and 
that  tlie  drawing  of  said  pistol  under  the  circumstiuices  was 
calculated  to  alarm  the  said  j\lark  Tollett,  and  that  said  pistol 
was  then  and  tlier(>  not  by  the  manner  of  its  use  a  deadly 
weapon,  j'ou  will  find  defendant  guilty  of  a  simple  assault,  and 
assess  his  punishment  at  a  fine  of  not  less  than  twenty-five  dol- 
lars." We  think  the  charge  is  correct,  and  is  in  accord  "with 
article  51)2,  subd.  3,  Pen. -Code.  Attcrherry  v.  State,  33  Tex. 
Cr.,  8S,  25  S.  W.,  125 ;  Pea /re  v.  State  (Tex.  Cr.  App.)  40  S. 
W.,  son. 

Apjiellant  also  complains  that  the  court  failed  to  define  a 
deadly  weapon.  This  statement  is  not  correct,  for  we  find  the 
following  definition  in  the  charge,  to-wit:    "One  which,  from 


1^ 


144 


AMERICAN  CRIMINAL  REPORTS. 


the  manner  used,  is  calculated  or  likely  to  produce  death  or 
serious  Ixxlily  injury."    This  is  not  only  a  definition,  but  a 
correct  one.    Kotins  v.  State,  3  Tex.  App.,  13;  McRcynoUs  v. 
State,  4  Tex.  App.  327 ;  Briggs  v.  Stale,  0  Tex.  App.,  144. 
There  is  no  error  in  the  record,  and  the  judgment  is  affirmed. 


^^ 


M 


m 


Williams  v.  State. 

44  Tex.  Crim.  Rep.  310—70  S.  W.  Rep.  957. 
Decided  December  3,  1902. 

Aggravated   Assault — Separate   and   Distinct    Encounters:     Motion 
to  require  prosecutor  to  elect — Self-defense — Verdict — Grade. 

1.  Resulting  from  the  same  subject  matter  and  between  the  same 

persons  and  in  the  same  locality,  but  about  fifteen  minutes  apart 
two  personal  encounters  occurred — Held  that  they  did  not  <on- 
stitute  a  single  assault  and  that  a  motion  to  require  the  jirose- 
cuting  attorney  to  elect  on  which  he  would  proceed  was  proper. 

2.  Where  a  difficulty  regarding  school  matters  resulted  In  a  personal 

encounter,  in  the  absence  of  the  accused,  between  a  teacher  and 
the  accused's  daughter,  and  later  the  accused  coming  upon  the 
scene  as  the  difBculty  was  about  to  be  renewed,  and  his  son  and 
two  daughters  being  at  the  time  surrounded  by  a  crowd,  In  which 
a  boy  of  seventeen  years  of  age  was  brandishing  a  clul)  ;\iul 
using  offensive  language — Held  that  the  accused  was  justifnd  i;i 
acting  in  the  defense  of  his  children,  according  as  the  mailers 
then  appeared  to  him. 

3.  In  a  charge  of  aggravated  assault  a  verdict  should  specify  the 

grade  of  the  assault. 

Appeal  frum  Smith  County  Court;  Hon.  George  W.  Cross, 
Judge. 

W.  R.  Williams  charged  Avith  an  aggravated  assault,  was 
convicted  and  appeals.    Reversed. 

J.  A.  Bulloch,  for  tl.'o  appellant. 

Botjcrt  A.  John,  Assistant  Attorney  General,  for  the  State. 

Davidsox,  p.  J,  Appellant  was  charged  with  an  aggravated 
assault  upon  Lena  Barnes.     The  allegations  charged  that  he 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume.  , 


WILLIAMS  V.  STATE. 


145 


and  ^^rittic  and  Lola  Williams  acted  together  in  committing 
till'  assault.  The  facts  disclose  that  the  son  of  appellant  had 
been  expelled  from  the  public  school  by  the  teacher  Lena  Barnes. 
Appellant  had  called  on  Aliss  Barnes  as  to  the  cause  of  the 
(wpulsion.  Miss  Barnes  rdferred  him  to  the  other  two  members 
of  the  board  of  trustees^  appellant  being  the  third  member.  lie 
lift  in  search  of  these  gentlemen.  During  his  absence  his  two 
diiuglitcrs,  llittie  and  Lela,  went  to  the  church  near  by  the 
g('li(i(illiouse,  and  took  their  seats  upon  the  doorstep.  Miss 
Eiinies  sent  witness  Dark  with  an  invitation  to  them  to  call  on 
Lor  in  the  schoolroom,  Avhieli  they  declined.  In  a  few  minutes 
tlie  school  closed  for  the  day,  and  ]Miss  Barnes  requested  the 
scIkkiI  to  accompany  her  to  an  interview  with  appellant's  daugh- 
ters. This  resulted  in  a  personal  encounter  between  ^lutie 
\Vi!!ianis  and  Miss  ]>arnes.  Somewhere  from  10  to  15  minutes 
alter  the  cessation  of  this  difHculty,  and  while  the  parties  were 
still  engaged  in  more  or  less  angry  conversation,  appellant 
ii]»prniicli(  d  the  scene.  His  elder  son  was  present,  and  the  wit- 
ne>s  Dark  was  using  some  very  unbeeoming  language  in  refcr- 
enee  to  the  Williams  family,  and  appellant  chidcd  his  son  for 
nr;t  protecting  his  daughters  from  the  insults.  One  word  brought 
fin  iiniitlier,  until  another  personal  difticulty  occurred  between 
Lola  Williams  and  ^liss  Barnes.  During  tl:is  altercation, 
cither  innnediately  preceding  or  during  the  fight,  appellant 
Wits  heard  to  say,  "Hit  her;"  or  ''Double  up  your  fist  ann  hit." 
This,  it  is  claimed,  was  intended  to  encourage  his  daughter  in 
the  (liilieulty.  The  court  tried  the  case  upon  the  theory  that 
the  two  fights  constituted  a  continuous  transaction  and  only 
one  (itVenso.  It  is  clear  from  the  testimony  that  appellant  was 
not  ju'csent  when  the  first  dilHculty  occurred.  It  is  clear  that 
there  was  15  minutes  or  more  elajtsing  Ix'tween  the  diifieulties, 
and  that  appellant  reached  the  scene  of  the  troidde  just  bef'o.-c 
the  second  fight.  Under  this  testimony,  the  State  has  not  shown 
any  criminal  connection  of  appellant  with  the  fight  between 
^liss  Harnes  and  his  daughter  Mittie,  and  it  is  ecpially  elear 
that  there  were  two  fights  at  an  interval  of  15  or  more  minutes. 
Ajtpt  llant  sought  to  ta.ke  advantage  of  ibis,  when  the  State 
ro-ied  its  case,  by  making  a  motion  to  require  an  election  as  to 
the  transaction  upon  wliieh  the  conviction  would  be  s.)Uirht. 
This  was  refused     At  the  conclusion  of  the  introduction  of  all 

Vc'.   XIII— 10 


Ml 


I  ''■' 


«■■■ 


14G 


AMERICAN  CRIMINAL  REPORTS. 


r  -ml] 
-  if:- 


the  evidence  this  motion  was  renewed,  and  this  was  followed  up 
still  later  with  a  cliarge.  The  election  as  to  tlie  transaetiou 
should  have  been  required.  Lamed  v.  State,  41  Tex.  Cr.  11., 
509,  55  S.  W.,  82G ;  Batchelor  r.  Stale,  41  Tex.  Cr.  R.;  501,  ■>:> 
S.  W.,  101;  Fisher  v.  State,  33  T(x.,  792;  Lu7m  v.  State,  41 
Tex.,  85.  For  this  error  the  judgment  of  the  court  must  be 
reversed. 

There  is  another  question,  Ix-aring  upon  self-defense.  ^Yllcn 
appellant  approached  the  scene  of  the  trouble  he  found  his  two 
daughters  and  his  son  surrounded  by  Miss  Barnes  and  her 
school  children,  among  others  Dark,  about  17  years  old,  a  frioml 
(if  ]\nss  Barnes,  Avho  was  armed  Avith  a  club,  and  using  very 
unbecoming  and  insulting  language  directed  against  the  Wil. 
liams  tamily.  Ap])ellant  came  upon  the  scene  with, this  picture 
before  him,  and  with  this  language  being  used,  and  eluded  his 
son  for  not  protecting  his  sisters.  Hark  immediately  threatened 
to  "blow  a  hole  in  liim  through  which  a  jay  bird  could  crawl.'' 
Appellant  while  Availing  for  the  school  trustees  Avas  some  dis- 
tance aAvay,  heard  loud  cursing  and  sAvearing  in  the  dir(>eti(jii 
of  the  scho<d,  and  thought  it  Avas  a  man's  voice.  AVhen  he  ^dt 
in  sight  of  the  croAvd  he  saAV  the  Avitness  Dark  Avith  a  sticlc 
draAvn,  and  ran  to  Avhrre  they  AA'cre.  They  Avere  all  talking  ;iik1 
very  much  excited.  Dark,  Avitli  an  uplifted  stick,  Avas  cinsing 
and  swearing,  lie  a.'ked  his  son  Avhy  he  permitted  sueli  ireat- 
nient  of  his  sisters,  ai.d  Dark  Ix'gnn  cursing  appellant,  Avlm  loM 
him^^that  he  Avas  a  boy  and  he  Avould  not  strike  him.  Api)ell:int 
further  testilies:  ''At  the  time  I  got  there,  and  from  what  T 
saw  and  lieard,  I  Avas  excited,  and  thought  they  had  all  been  or 
Avas  about  to  attack  my  girls.  I  told  one  of  them  tluy  enu'.d 
whi])  her  if  they  Avanted  to,  and  Lela  and  Miss  Barnes  Aveiil  to 
fighting.  At  the  time  I  ppoke,  ^liss  Barnes  Avas  talking  to 
IaAh  and  pointing  her  finger  in  her  face.  While  they  were 
fighting,  I  told  Lela  to  doid)U'  u|»  her  fist.  I  di)  not  know 
Avhether  she  heard  me  or  not  either  time."  The  substanci'  of 
the  further  testimony  of  defendant  is  to  the  effect  that  lii' 
thought  his  girls  Avere  being  imposed  upon,  from  what  In; 
could  see  as  he  approached,  and  that  Dark  Avas  preventing  his 
daughters  from  protcx-ting  themselvo*'  against  the  assnnlt  of 
!Miss  Barnes.  If  this  testimony  is  true,  or  is  Ijolieved  by  tlic 
appellant  to  be  true,  he  Avould  be  gnilty  of  no  offense.    If,  when 


'■■it::-. 


WILLIAMS  V.  STATE. 


147 


he  came  upon  the  scene,  he  found  the  witness  Dark  in  the 
position  of  using  tlie  uplifted  club,  and  cursing  and  swearing. 
etc.,  he  was  justified  in  doing  all  that  he  did,  and  he  would 
jiavo  been  justified  in  going  furthei-.  lie  had  a  right  to  protect 
his  (hiiighters  as  he  viewed  the  situation,  although  his  daughters 
limy  have  heen  originally  in  the  wrong.  (Juffee  v.  State,  8  Tex. 
App.  187.  Appellant's  case  must  be  viewed  from  his  stand- 
point, and  if  at  the  time  it  appeared  to  him,  though  it  was 
not  a  fact,  as  he  approached  tlie  scene,  that  the  witness  Dark 
and  Miss  Barnes,  and  the  other  children,  one  or  all  of  them, 
wvYr  making  an  attack  u])on  his  daughters,  or  that  ])ark  was 
\\<\v.'..':  I  he  club  in  a  threatening  manner  towards  his  daughters, 
ajid  eiicduraging  ^liss  JJarnes  in  what  aj^peared  to  defendant 
to  he  an  attack  upon  his  daughters,  he  would  Ix!  justified,  not 
(lily  ill  what  he  did,  but  would  have  been  further  justified  in 
nsinii'  any  reasonable  force  to  repel  the  attack  or  seeming  attack 
upon  his  daughters.  If  what  appellant  testified  be  true,  the 
witness  Dark  at  the  time  was  conmiitting  an  assault  upon  his 
(laii^htcrs  with  a  club;  at  least  was  using  the  club  in  a  threaten- 
iiiii'  manner,  as  if  to  strike,  whicli  would  have  been  an  assault. 
This  phase  of  the  case  should  have  been  submitted  by  the 
court's  charge. 

There  is  a  question  raised  with  reference  to  the  sufficiency 
of  the  verdict.  It  does  not  specify  the  degive  of  assault  of 
which  appellant  was  convicted.  The  law  in  regard  to  aggra- 
vated and  simple  assault  was  given  in  the  charge.  The  jury 
returned  a  general  verdict  of  guilty,  and  assessed  the  punish- 
iiieut  at  $25,  which  is  the  minimum  punishment  for  aggra- 
vated assault  and  the  maximum  for  simjile  assault.  ITpon 
aniiilier  trial  the  jury  should,  if  they  convict,  be  I'eiiiiired  to 
specify  the  offense  of  which  appellant  is  convicted. 

K<ir  the  errors  discusseu,  the  judgment  is  reverso«l,  and  the 
cauirc  reiuandcd. 


v| 


'^1 


148 


AMERICAN  CRIMINAL  REPORTS. 


m  V 


Stricklin'  v.  State. 

67  Ark.  349—50  S.  W.  Rep.  270. 

Decided  January  20,  1900. 

AccBAVATED  ASSAULT— CoxsiiiKBAnLE  Pbovocation:  Practice—Mitifiaf- 
ing  circumstances — deduction  vf  se7itence — One  minute  in  Cuidiiy 
Jail. 

1.  A  motion  for  continuance  because  of  the  absence  of  a  witness,  rosta 

with  sound  discretion  of  the  judge;  and  -his  decision  will  not  be 
disturbed  unless  an  abuse  of  discretion  appears. 

2.  The  court  having  overruled  a  motion  for  continuance,  and   also 

excluded  evidence  of  the  same  nature  as  that  sought  by  (he 
motion  for  continuance,  the  latter  Is  the  question  to  be  consul- 
ered  on  appeal. 

3.  The  "considerable  provocation"  which  under  the  statute  excuses 

the  use  of  a  deadly  weapon,  "is  manifestly  that  which  arouses  to 
incitement  on  the  occasion,  and  is  present  and  temiwrary  in  its 
effects,  and  ought  not  to  be  a  defense  when  it  has  ceased,  and 
the  revenge  and  hatred  it  has  called  forth  alone  remains." 

4.  The  court  below  having  erred  in  rejecting  evidence  which  did  net 

show  an  excuse  for  the  act,  but  simply  bore  on  the  question  cf 
punishment,  the  sentence  is  reduced  to  the  minimum  statiUoiy 
punishment:  a  fine  of  $50.00  and  imprisonment  in  the  county 
jail  for  one  minute. 

Appeal  from  Circuit  Court,  Clark  Countj  ;  lion.  Joel  I). 
Conway,  Judue. 

Joseph  Stricklin  convicted  of  an  aggravated  assault,  appeals. 
Modified. 

C.  V.  Murry  and  E.  B.  Kinswortliy,  for  the  appellant. 
Jpff  Davis,  Attorney  General,  and  Charles  Jacobson,  for  tlio 
State. 

Brxx,  C.  J.  This  is  an  indictment  for  an  aggviivntod 
assault  with  a  deadly  wcajwu,  under  section  1476,  of  Saml.  k 
II.  Dig.,  which  reads  as  follows,  to-wit:  "If  any  person  ^liiill 
assault  another  with  a  deadly  weapon,  instrument  or  other 
thing,  with  an  intent  to  inflict  upon  the  person  of  another  a 
bodily  injury,  where  no  considerable  provocation  ap]wars,  or 
where  the  circumstances  of  the  assault  show  an  abai  doiii.uiit 
and  malignant  disposition,  he  shall  be  adjudged  guilty  of  a 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


niisdci 

Hot    Ic 
ilii|;ri.'^ 

To 
guilty, 
von  I  lot 
iiidit  w 
iiMition 
to  this  ( 
III  \h 
".Aly  da 
go  hiick 
into  the 
person] 
He  sjiid, 
him  that 
tlic  p(>;ici 
Irciitod  n 
to  J)ick  it 
slioot.     I 
.'1  wirr.'in: 
yon,  to 
*I  don't 
didn't  .sa> 
,3011  lijive 
snid,  '[  ill 
peace]  CO 
Gi'ay  com 
I^y  1110. 
and  eoiiio 
and  I  slio 
ncss  said 
if  lip,  ami 
and  laid  tl 
^\'a.s  a  si  11 J 
"t  \ortonl 
reason  forf 
another  gi| 
morning 
killed.  ^  II 


STRICKLIN  V.  STATE. 


149 


iiiisilcmeanor,  and,  on  conviction,  sliall  be  fined  in  any  sum, 
iKit  less  than  fifty  nor  exceeding  one  tliousand  dollars,  and 
iiiipri.'^unmcnt  not  exceeding  one  year." 

To  the  indictment  the  defendant  entered  his  plea  of  not 
puilty,  and  a  trial  was  had,  reeulting  in  a  conviction,  and 
vordict  for  $100  fine,  and  one  hour's  imprisonment,  and  judg- 
ludit  was  rendei'od  accordingly;  and  from  this  judgment — a 
iiiotidu  for  a  new  trial  lx?ing  overruled — the  defendant  appealed 
to  ill  is  court. 

In  tlie  course  of  the  trial  the  defendant  testified  as  follows: 
**ily  daughter  advised  me  that  Gray  was  coming,  and  not  to 
go  buck  that  way;  that  ho  would  waylay  me.  I  took  her 
into  the  house,  and  looked  out  and  saw  Gray  [the  assaulted 
juvf^on]  coming  with  his  gun,  and  told  him  not  to  come  closer, 
llo  said,  'Don't  shoot.'  I  said,  'Lay  your  grm  down.'  I  told 
liiiu  that  I  had  come  to  get  a  Avarrant  [this  was  at  the  justice  of 
llic  jx'ace's  rr sidcnee]  to  have  him  arretted,  for  the  way  he  had 
Iroatcd  me.  I  told  him  to  lay  it  [the  gun]  down.  He  started 
to  pick  it  up  again.  Then  I  made  a  motion  like  I  was  going  to 
?lio()t.  I  said:  'Consider  yourself  a  prisoner.  I  came  to  get 
a  warrant  for  you,  hut  the  officer  is  gone,  so  I  am  going  to  hold 
vdu,  io  keep  you  fr(jm  hurting  me.'  Question.  Did  he  say, 
'I  don't  want  to  hurt  you?'  Answer.  No,  sir;  Mr.  Gray 
didn't  say  that.  I  said,  'I  am  going  to  arrest  you  for  the  way 
\ou  have  treated  me.'  He  said,  'You  ain't  going  to  do  it.'  I 
gaid,  '[  am  going  to  keep  you  until  Mr.  Norton  [justice  of  the 
peace]  comes,  and  get  a  warrant  for  you.'  About  that  time 
Gray  commenced  abusing  me,  and  said  he  wouldn't  be  arrested 
by  nio.  He  said,  'You've  got  my  gim,  but  I'll  get  another, 
and  come  and  kill  you.'  He  kept  walking  off  and  abusing  me, 
and  I  sliot  him.  That  is  the  sum  and  substance  of  it."  Wit- 
ness said  that  after  he  shot  Gray  he  went  to  Gray's  gun,  picked 
it  n]i,  and  fired  it  off.  He  then  took  both  guns  into  the  house 
and  laid  them  on  the  bed.  His  gim  was  a  musket,  while  Gray's 
was  a  siugle-baprel  shotgun.  (After  being  shot,  Gray  remained 
r,t  Norton's  house  until  he  came  home.)  Witness  gave  as  his 
reason  for  shooting  Gray,  that  the  latter  was  threatening  to  get 
another  gun  and  kill  him.  From  this,  and  his  conduct  on  the 
morning  previously,  witness  thought  ho  would  certainly  get 
killed.     In  his   testimony,   Gray  was   uncertain   whether  ho 


■?  f 


HWII 


150 


AMERICAN  CRIMINAL  REPORTS. 


,MVi' 


"r 


dropped  or  lay  bis  giin  down  before  or  after  be  was  sbot.  The 
two  acts  were  so  close  togetbcr  in  point  of  time,  he  could  imt 
rciiieuiber.  Alice  Stricklin,  daughter  of  defendant,  in  Ik  r 
testimony  said  Gray  put  down  bis  gun  wben  ber  father  Inld 
Jiiiu  to  do  so,  and  the  sliooting  was  done  afterwards.  Gray 
had  gotten  off  some  little  distance  from  bis  gun,  then  lyiiii;'  on 
the  ground,  when  Stricklin  fired,  a"d  after  that  bo  took  uu 
Gray's  gnui.  Stricklin  told  Gray  to  lay  bis  gun  down,  and  he 
did  so.  These  seem  to  be  the  undisputed  facts  as  to  the  occur- 
rences at  the  scene  of  the  shooting. 

Whether  Gray  bad  followed  Stricklin  to  Norton's  for  tlio 
purpose  of  renewing  the  difficulty  of  the  morning  with  him, 
or  for  the  purpose  of  killing  him,  or  for  any  other  evil  purpoM', 
or  had  gone  there,  not  knowing  that  Stricklin  was  there,  merely 
for  the  purpose  of  borrowing  a  horse  to  ride  to  another  iihu'c, 
as  he  states,  is  a  disputed  fact. 

On  the  calling  of  the  case  for  trial,  the  defendant  movod 
for  a  continuance  because  of  the  absence  of  Dr.  Edward  Stone. 
one  of  his  witnesses  (avIio  bad  been  duly  subpoenaed,  and  had 
apjiearcd  at  the  last  term,  but  was  not  present  at  the  present 
term),  stating  that  this  witness  would  swear:  "That  on  tlio 
day  of  the  alleged  assault,  a  short  time  before  it  occurred,  lie 
was  at  defendant's  bouse,  wben  the  prosecuting  witness,  dniiic-, 
G.  Gray,  went  into  defendant's  home  and  raised  a  fuss  with 
the  defendant,  who  ordered  Gray  to  leave  the  house,  and  made 
him  go  away.  That  a  few  minutes  later  the  said  James  G. 
Gray  appeared  near  defendant's  home  with  a  gun,  and  called 
to  defendant,  saying:  'Come  out  of  your  bouse.  I  want  to  kill 
you,  but  don't  want  to  kill  a  man  in  bis  own  house.'  1'iiat 
defendant  then  requested  said  witness  [Dr.  Stone]  to  go  nut 
and  get  the  said  Gray  to  go  away,  which  he  did.  That  this 
occurred  a  few  minutes  before  the  assault.  That  defemlaut 
then  started  to  the  office  of  a  justice  of  the  peace  for  a  war- 
rant of  arrest  for  Gray,  who  followed  defendant  to  tlie 
justice's  bouse,  where  the  alleged  assault  occurred.  That  a 
few  minutes  after  the  alleged  assault  the  said  Gray,  in  the 
presence  of  said  Avitness,  admitted  that  when  defendant  shot  him 
he  was  threatening  to  kill  defendant;  that  defendant  was  imt 
to  blame  for  shooting  him ;  that  bis  (Gray's)  temper  got  away 
with  him,  and  caused  the  difficulty.     That  defendant  believes 


tru^v  '.Mm^^  ■ .  «» jj>  ^^  WIH4***  a 


STRICKLIN  V.  STATE. 


151 


lliosc  facts  to  be  tnio,  .and  lie  cannot  prove  thorn  by  any  wit- 
nt'ss  other  than  the  said  Stone." 

Other  witnessop  were  pfesenttd  during  the  trial  for  the  pur- 
)ins('  of  proving  the  same  facts  sulistantially,  but  the  trial 
(•(lurt  held  all  testimony  as  to  what  occurred  previous  to,  and 
lit  a  (liilVrent  place  from  the  jdace  of,  the  assault,  to  bo  imina- 
torial,  hud  therefore  inconip(  tent. 

It  is  within  the  sound  discreticm  of  the  trial  court  to  refuse  a 
cnntiiiiuince  on  account  of  the  absence  of  a  witness,  and  this 
discretion  will  not  Ik?  controlled  by  us,  unh'ss  abused;  but  as 
the  same  point  was  made,  in  substance,  by  the  ruling  of  the 
cnurt  excluding  testimony  to  the  same  effect,  the  question 
should  he  disposed  of  as  upon  an  assignment  of  positive  error, 
and  not  merely  as  a  question  of  abuse  of  discretion.  It  is  ron- 
rended  that  the  exchuled  testimony  tended  to  show  a  "consider- 
iihlo  jtrovocation,"  for  the  assault,  and  therefore  shouM  have 
lieeii  ii<luiitted  for  the  consideration  of  the  jury  in  deteriiiiiiing 
wliotlier  the  acts  charged  really  amounted  to  the  crime  of 
iiiigravated  assault  with  a  deadly  weapon.  It  may  be  admitted 
tliiit  the  conduct  of  the  injured  party  (if  as  proposed  to  be  sot 
fnrtli  by  tliese  witnesses)  would  be  annoying  and  troublesome 
ill  tlie  extreme,  but  whether  or  not  it  constituted  that  consider- 
able jirovocation  written  in  the  law,  is  another  question,  and 
that  questi<m  is  to  be  determined  by  the  circumstances  in  each 
case.  \a  t  it  1)0  admitted  that  Gray  '^raised  a  fuss"  at  dot'end- 
jiiit's  house,  and,  after  l)eing  driven  oif  therefrom,  returned 
with  his  g«n,  making  violent  threats  against  defendant  if  he 
would  come  out;  that,  in  our  opinion,  would  not  justify  a 
(Iiiidly  assault  upon  him  some  considerable  time  afterward:^, 
mIich  he  had  gone  off  at  the  instance  of  the  defendant,  through 
Dr.  Stone.  The  i)rovocation  spoken  of  in  the  law  is  manifestly 
that  wliieh  arouses  to  incitement  on  the  occasion,  and  is  present 
and  temporary  in  its  effects,  and  ought  not  to  be  a  defense  when 
it  has  eeased,  and  the  revenge  or  hatred  it  has  called  forth 
alone  remains.  Let  it  be  admitted  that  Gray  followed  defend- 
ant to  the  house  of  the  justice  of  the  peace,  knowing  full  well 
the  ohjeet  of  his  (defendant's)  going  there,  and  that  he  (Gray) 
wont  with  the  intent,  not  only  to  renew  the  "fuss,"  but  also  to 
carry  out  his  threats;  and  yet,  if  he  submitted  to  the  reason- 
able and  lawful  demf.nds  of  defendant,  by  disarming  himself, 


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AMERICAN  CRIMINAL  REPORTS. 


it  would  be  a  dangerous  thing,  we  think,  to  say  that  his  pvevinus 
conduct,  as  a  provocation,  should  be  regarded  as  a  justilicjitidn 
or  excuse  for  the  defendant's  shooting  Gray  afterwards,  wliieli 
in  such  case  could  only  have  been  done,  as  defendant  tcstitics, 
to  prevent  Gray's  killing  him  some  time  in  the  future.  We 
think,  therefore,  that  the  court  erred  in  excluding  this  testi- 
mony, not  because  it  would  or  should  have  authorized  the  jur\ 
to  lind  the  defendant  not  guilty  of  the  crime  charged,  l)ut 
because  the  defendant  was  mtitled  to  the  benefit  of  it,  as  ;; 
matter  of  mitigating  or  lessening  the  punishment  to  be  inflictcil 
up(.i)  him. 

The  lowest  punishment  fixed  by  law  for  such  offense  is  a  fine 
of  $.iO,  and  imprisonment  without  minluuim  limit.  We  there- 
fore modify  the  judgment,  nuiking  the  tine  $50,  instead  of  $1()0, 
and  the  additional  j)unishmcnt  one  Jninute  imprisonment  in  \W' 
county  jail,  instead  of  one  hour;  and  with  these  moditication- 
the  judgment  is  affirmed. 


McLexdon  v.  State. 


Texas— Court  of  Criminal  Appeals— 66  S.  W.  Rep.  553. 
Decidea  February  5,  1902. 

AcGKAVAThi)  Assault — Danckrois  ok  Dkadly  Weai»on:  Self-defcnsr— 
Real  or  apparent  danger— Gharai  ter  of  weapon  determinal  by 
manner  and  extent  of  its  use — Erroneous  instructions. 

1.  TIio  proof  being  that  the  injured  person  made  the  first  assault,  it 

v.p.s  error  to  limit  the  right  of  self -defense  to  the  theory  tliat  he 
was  about  to  assault  the  defendant;  was  also  error  to  instinct 
the  jury,  that  self  defense  was  cnly  available  in  cases  of  nyccs- 
sity;  also  error,  to  limit  self-defense  to  cases  where  there  is  dan- 
ger of  death  or  great  bodily  harm. 

2.  The   right   of   self-defense   exists    when   the   danger   Is   apparent; 

such  danger  need  not  be  of  death  or  of  great  bodily  injury,  but 
may  be  a  danger  of  less  degree. 

3.  A  weapon  may  be  deadly  or  net  according  to  the  use  made  of  it. 

4.  Where  one  is  assaulted  and  in  defense  strikes  with  a  heavy  pistol; 

but  desists  as  soon  as  his  own  danger  is  past,  the  evidence  does 
not  show  the  use  of  a  deadly  weapon. 


For  cases  in  previcus  volumes  on  any  subject,  see  Table  of  Topic-  in 
this  volume. 


Ail  tl 
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McLENDON  v.  STATE. 


153 


Appeal  from  Hunt  County  Court;  Hon.  R.  D.  Thompson, 
Jiulgo. 

II.  McLendon  convicted  of  an  assauit  and  battery,  appeals. 
Eovor»ed. 

,\\  J).  Slinson  and  R.  L.  Povlcr,  for  the  appellant. 

Hubert  A.  John,  Assistant  Attorney  General,  for  the  State. 

llr.N'DKUsoN,  J.  Ajipellant  was  convicted  of  an  aggravated 
assjiult  and  battery,  and  his  punishment  assessed  at  u  line  of 
hiilDO,  and  prosecutes  this  appeal. 

AppeUant  objects  to  the  seventh  subdivision  of  the  court's 
eliiirgc  on  the  ground  th.at  it  limited  ai)pellaut's  right  of  self- 
defense  to  John  Cole  being  about  to  nuike  an  assault  u])on  him 
calculated  to  inflict  death  or  serious  bodily  injury;  that  tlu  n 
he  Vvdidil  have  the  right  to  repel  such  attack,  using  only  such 
furcc  as  may  have  bee  n  necessary,  etc. 

The  contention  hero  is  that  the  court  tells  the  jury  that 
appellant  would  have  the  right  to  repel  such  attack  if  John  Cole 
was  about  to  make  an  assault  upon  him,  whereas  the  facts 
showed  that  he  was  n<)t  about  to  nuike  the  assault,  but,  as  shown 
by  tlie  evidence,  had  already  made  the  assault  when  a[)pellant 
strufk  him  with  the  pistol.  And,  moreover,  that  the  charge 
tolls  the  jury  that,  before  appellant  was  authori/ud  to  protect 
liiuisclf  against  said  assault,  it  nuist  have  been  cah-ulated  to 
intlicl  (hath  or  serious  bodily  injury  upon  him,  whereas  he 
could  defend  himself  if  the  assault  was  not  of  that  character, 
but  of  a  less  degree  And,  again,  it  is  urged  that  the  charge 
tells  the  jury  that  appellant  was  only  authorized  to  rejiel  the 
atta('i\,  and  use  foi'oe  for  that  purpose,  if  the  same  was  neces- 
sary, whereas  appellant  could  defend  himself  if  if  was  appar- 
ently necissary.  We  think  appellant  is  correct  in  (Mch  of  his 
cunti'utions,  and  that  the  charge  in  question  contain's  the  vices 
])oiiit((l  out.  The  charge  should  not  have  been  given  in  that 
shape,  and  Avas  calculated  to  injure  appeMant's  rights. 

All  the  evidence  shows,  lx»th  for  the  State  and  defendant, 
inchnliiig  the  testimony  of  the  witness  John  Cole,  that  he  (Cole) 
!na(le  the  first  assault  on  appellant,  that,  when  he  saw  him  com- 
ing down  the  aisle  with  tlie  pistol,  he  grablied  him  and  pressed 
liiiu  back  over  sonic  boxes,  and  onto  the  counter,  ajul  Inid  him 
bent  back  over  the  countev,  when  appellant,  for  the  first  time, 


154 


AMERICAN  CRIMINAL  REF0RT3. 


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n^B   ^ 

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^^H  i 

H^B  ^ 

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^^B  'i 

struck  him  over  the  head  with  the  pistol.  And  telling  the  jurv 
that  Cole  Avas  about  to  make  an  assault  upon  the  person  of 
defendant  was  a  suggestion  to  them  that  appellant  actually 
comniittccl  the  first  assault,  3^'urtherinore,  tho  jury  might  seri- 
ously doubt  -.vhethcr  the  assault  made  by  Cole  on  appellant  was 
calculated  to  inflict  death  or  serious  bodily  injury.  If  the 
assault  was  of  a  less  character,  still  appellant  could  protci"; 
iiiinse'-f  against  it;  and  if  he  used  no  more  force  than  Wiis 
reasonably  lucessary  to  protect  iiimself,  although  his  assault 
might  itself  be  calculated  to  inflict  death  or  serious  bodily  in- 
jury, still  he  would  be  justifiable,  and  appellant,  in  repelliii^' 
the  attack,  could  use  any  force  that,  from  his  standpoint,  was 
a])]iarcntly  reijsonably  necessary. 

The  verdict  of  the  jury  is  also  objected  to  on  the  ground 
that  the  cviiknce  do(s  not  sustain  the  conviction  for  aggravatcl 
assault.  Jf  tlie  pistol  as  used  was  a  deadly  weapon,  or  if  seri- 
ous bi.dily  injury  was  inflicted  on  appellant,  as  both  these 
nnUters  were  charged  in  tho  information,  the  vex'dict  can  Ik? 
sustaijiid.  The  proof  here  showed  that  appellant  only  u-ed 
the  ])istol,  which  Avas  a  iH-caliber  six-shooter,  weighing  2j.j  (ir 
2%  pounds,  to  strike  with,  after  he  was  pressed  back  on  the 
coimter.  The  pistol  used  to  strike  with  was  not  necessirily  a 
deadly  weapon,  l)ut  will  be  such,  or  not,  according  to  the  size 
and  manner  of  using  it.  ShaJle  v.  State,  34  Tex.  572 ;  Stephen- 
son  V.  Same,  33  Tc'x.  Cr.  R.  162,  25  S.  W.  784.  Here,  a|)i)el- 
lant,  according  to  the  testimony,  after  he  was  pressed  back  by 
prosecutor  onto  the  counter,  struck  three  licks  with  the  pistd!, 
and  rs  foi  ii  as  prosecutor  turned  him  loose  he  desisted,  llo 
had  full  iipportunity  to  continue  the  assaidt,  or  to  have  sin  it 
the  prnsecntiir.  Evidently,  he  did  not  use  the  pistol  as  a  deadly 
weapon. 

An  examination  of  the  record  discloses  that  the  injuries  wove 
not  of  a  serious  character.  Prosecutor  is  not  shown  to  inv'.- 
regarded  them  as  serious,  and  the  physician  testified  that  they 
were  neither  serious  nor  dangerous,  so  that  it  was  not  an 
aggravate*!  assault  by  the  reason  of  the  infliction  of  serious 
l)0(lily  injury. 

For  the  reasons  indicated,  the  judgment  is  reversed  and  the 
cause  remanded. 


McCARDELL  v.  STATE. 


155 


McCabdell  v.  State. 

Texas— Court  of  Criminal  Appeals— 77  S.  W.  Rep.  446. 
Decided  December  2,  1903. 

A(.{.UAVATED  Assault — Sei-j'-Defense — Instructions:    Evidence  of  cus- 
tom, of  disorderly  acts. 

1.  It  appearing  by  the  evidence  tliat  the  injured  party  had  thrown 

his  knife  several  times  at  the  accused  and  committed  other  acts 
of  indignity  to  the  accused,  held,  that  the  court  should  have 
instructed  on  the  law  of  self-defense,  . 

2.  It  was  error  to  permit  the  State  to  sliow  that  among  railroad  hands, 

with  whom  the  accused  and  the  injured  person  assodpted,  that 
there  was  a  habit  to  pitch  knives  at  each  other,  etc. 

Appeal  from  Polk  (^onnty  Court;  Hon.  A.  B.  Grpon,  Judjio. 
('ill   ^McCardcll,   convicted   of   aggravated   assault,    appeals. 
Reversed. 

/'.  i'nmphcll,  for  the  apiwllant. 

Howard  Martin,  Assistant  Attorney  General,  for  the  State. 

l)Avn).;oN,  P.  J.  Appellant  was  convicted  of  an  aggravated 
flssinih  l)y  means  of  a  deadly  weapon.  There  are  but  two  ques- 
tions we  d(  om  of  importance : 

Fi'st,  the  testimony,  in  our  opinion,  clearly  presented  the 
issue  <if  self-defense.  This  was  not  charged  upon,  and  the 
sjicfial  re(pK'sted  charge  by  appellant  was  refused.  The  im- 
nuiliiite  facts  show  that  the  alleged  assaulted  party  had  thrown 
his  open  knife  a  time  or  two  at  appellant,  who  had  requested 
him  to  desist.  According  to  some  of  the  witnesses,  he  had 
tiiktn  iipi)ellant's  cap  and  cut  it  with  his  knife,  filling  it  with 
SiUKl  and  throwing  it  away;  and,  at  the  time  ol  llie  alleged 
assjuilt,  api)ellant  had  thrown  the  knife  of  the  injure(l  party 
(jflf  sdiiic  distance.  The  injured  party  was  in  the  act  of  picking 
ir  up,  and  in  such  manner  as  indicated  to  appellant  that  h3 
liitciided  to  further  use  it  in  throwing  at  him.  This  testimony 
Wiis  in  the  record,  and  it  justified  appellant  in  demanding  a 
cliiirge  on  self-defense,  for,  if  the  assaulted  party  was  ])icking 
u])  the  knife  at  the  time  to  continue  throwing  it,  appellant  had 
a  riiilit  to  strike. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


.'1  Kr 


II 


S'^r- 


im 


If  i^ 


If 


156 


AMERICAN  CRIMINAL  REPORTS. 


Error  is  also  assigned  iipon  the  admission  in  behalf  of  the 
State  of  the  testimony  showing  that  the  railroad  hands,  of 
wliieli  the  assaulted  party  and  appellant  were  a  part,  were  In 
the  habit,  and  "it  was  the  ciistom  of  this  section  crew,  to  hurrah 
cue  another  and  ti.  pitch  knives  at  one  another."  This  was 
trror.  See  Ilawhum  v.  Stale,  17  Tex.  App.  593,  50  Am.  Hep. 
120;  7  Crim.  Law  Mag.  277;  State  v.  Burnliam,  50  Vt.  44'), 
4S  Am.  Hep.  SOI. 

For  the  errors  indicated,  this  judgment  is  reversed,  and  tlie 
cause  remanded. 


"MoXTnOlIKKY  V.   CoMMONWKALTII. 

98  Va.  840—36  S.  E.  Rep.  371. 

Decided  June  14,  1900. 

Assault  with  Intent  to  Maim,  Etc. — Trespasser's  Right  of  Self-De- 
fense:  Unreasonable  disvlay  of  force  in  ejecting  a  trespasser— 
Grades  of  the  offense  in  felonious  assault — Instructions. 

1.  A  person  may  use  necessary  force  to  eject  a  trespasser,  who  re- 

fuses to  leave  his  premises;  but  this  rule  is  subject  to  modifica- 
ticn  and  except  in  extreme  cases  the  force  must  not  be  such  as 
would  endanger  life  or  result  in  serious  bodily  harm. 

2.  Where  a  trespass  is  trivial  in  its  nature  and  tb"  trespasser  re- 

fuses to  leave,  such  refusal  on  part  of  the  trcb.  ser,  will  not 
justify  the  owner  or  possessor  of  the  premises  to  advance  upon 
him  with  a  deadly  weapon,  such  as  a  recently  sharpened  corn 
cutter,  in  a  threatening  manner  well  calculated  to  excite  appre- 
hensions of  great  bodily  harm.  When  such  unreasonable  dis- 
play of  force  is  used,  the  person  so  assaulted  may  defend  him- 
self to  the  limit  of  the  law;  and  the  jury  should  be  so  Instructed. 

3.  On  an  Indictment  for  felonious  assault  the  accused  may  be  found 

guilty  of  a  lesser  grade  of  assault;  accordingly  it  is  not  error 
to  refuse  to  charge  the  jury,  to  acquit,  if  a  felonious  assault  is 
not  proven. 

Sujircme  Court  of  Appeals  of  Virginia. 
Error  to  tl-e  Circuit  Court  of  Rockbridge  Count}'. 
Danid  ^lontgonierv,  on  November  17,  1899,  was  convictod 
of  a  felonious   assault,  in  the  County  Court  of  Rockbridi>(' 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


MONTGOMERY  v.  COMMONWEALTH. 


157 


County,  which  conviction  was  affirmed  by  the  Circuit  Court  of 
tlint  (Vninty,  February -2 G,  1J)00. 
Kt'vcrsed. 

If'ifjh  A.  White,  for  the  plaintiff  in  error. 

/I.  J.  Montague,  Attorney  General,  for  the  Commonwealth. 

ILvKHisoN,  J.    The  prisoner  was  indicted  in  the  county  coiirt 
of  Kockln-idge  county  for  foloniona  assault  with  intent  to  maim,. 
(listiiiure,    disable,   and   kill   William    K.   Davidson.      He  was 
fduiid  guilty,  and  sentenced,  in  accordance  with  the  vei'dict,  to 
c.wtinement  in  the  penitentiary  for  a  tc  rm  of  four  years. 

Upon  ])etition  for  a  writ  of  ern)r  and  sujiersedeas,  the  circuit 
court  <jf  Rockbridge  having  refused  to  grant  a  new  trial,  the 
CiiHc  i.s  now  before  this  court  for  review. 

The  salient  facts  estalilishtd  by  the  commonwealth  are  as 
'fnlldws:  The  prisoner  Vv.it  upon  the  lands  of  Davidson  for  the 
jnirpose  of  selling  a  gim  to  Reed  Tyler,  one  of  the  hands  on 
tl:e  i)lace.  While  in  convrr>'ation  Avith  Tyler  and  John  Ran- 
(1(  ipli,  a  tenant  on  the  premise  s,  Davidson,  who  was  riding  by, 
was  called  up  by  Randolph,  who  said  to  him:  "Here  is  a  man 
who  says  he  is  going  to  hunt  anyhow."  Davidson  then  told 
the  prisoner  that  he  could  not  hunt ;  tliat  the  land  was  posted 
to  white  and  black.  The  prisoner  replied  that  he  was  not  hunt- 
iiig,  but  that  he  had  seen  no  notices  of  posting,  and  if  he  had 
seen  anything  would  have  shot  at  it.  Davidson  then  asked  the 
prisoner  what  business  he  had,  and  was  told  that  he  had  come 
to  sell  his  gun,  and  that  Reed  Tyler  had  bought  it.  Davidson 
said,  *'If  you  have  transacted  your  business  you  must  leave," 
and  motioned  his  hand  to  him  to  go.  The  prisoner  replied  that 
he  would  go  when  he  got  ready.  Davidson  then  dismounted, 
and  started  towards  the  prisoner,  saying,  "I  will  see  about 
iliat."  The  prisoner,  with  his  gun  in  hand,  stepped  back  some 
10  or  15  feet,  saying,  "If  you  1  urt  me,  I'll  shoot  you,  damn 
you."  Davidson  picked  up  a  corn  cutter  recently  ground  and 
sharp,  ran  to  the  prisoner,  and  they  clinched.  In  the  scuffle 
tlie  gi'.n  was  discharged  in  the  air,  and  Davidson  received,  it 
does  not  clearly  appear  how,  a  cut  and  some  abrasions  on  the 
head.  They  fell  to  tho^ound,  Davidson  on  top.  After  some 
scuiHe,  the  prisoner  cried,  "Take  him  off,"  and  they  were 
separated.    Davidson  was  not  laid  up  by  his  wounds,  and  was 


^^1  r^HFl 


■■■ 


158 


AMERICAN  CRIMINAL  REPORTS. 


V 


"all  right,"  as  stated  by  liis  physician,  at  the  time  of  the  trial, 
vhioh  was  within  six  weeks  from  the  date  of  the  affray. 

The  first  error  assigned  is  the  action  of  the  court  in  refusing 
certain  instructions  asked  for  by  the  prisoner,  and  giving  of 
its  own  motion  in  lieu  thereof  the  following: 

•'The  court  instructs  the  jury  that  W.  E.  Davidson  had  the 
right  to  require  the  accused  to  leave  his  premises,  and  that,  if 
the  accused  refused  to  leave  when  so  requested,  the  said  David- 
son had  the  right  to  use  such  force  as  was  necessary  to  eject  him 
from  hi.'j  premises." 

The  theory  of  the  prosecution  is  that  the  prisoner,  having' 
refused  to  leave  immediately  upon  being  ordered  to  do  so, therein- 
became  a  trespasser,  and  as  such.,  Davidson  had  a  right  to  usi' 
any  force  necessary  to  remove  him,  even  to  the  extent  of  assault- 
ing him  with  a  deadly  weapon. 

The  prisoner  contends  that,  if  he  was  a  trespasser  at  all,  the 
trespass  was  of  the  most  trivial  character,  as  he  was  neither 
doing  or  threatening  to  do  any  harm  to  Davidson  or  his  pmp- 
erty,  and  that  his  act  did  not  justify  the  assault  made  updii 
him  Avith  a  deadly  weapon,  and  that  he  had  a  right  to  defend 
himself  from  such  assault. 

The  instruction  as  given  contains  the  general  rule,  which  is 
sound  as  an  abstract  proposition,  that  every  man  has  the  right 
to  defend  his  person  or  pi'operty,  but  it  i^iores  the  well-settled 
and  important  modification  of  the  rule  that  in  defense  of  pei-sini 
or  property  one  ca-inot,  except  in  extreme  cases,  endangir 
human  life  or  do  great  bodily  harm.  The  law  is  clearly  stated 
by  a  learned  judge  in  State  v.  Morgan,  25  N.  C.  186,  38  Am. 
Dec.  714,  as  follows:  "When  it  is  said  that  a  man  may  right- 
fully use  as  much  force  as  is  necessary  for  the  protection  of  his 
person  and  property,  it  should  be  recollected  that  this  rule  in 
subject  to  this  most  important  modification,  that  he  shall  not, 
excei)t  in  extreme  cases,  endanger  human  life  or  do  great  bodily 
harm.  It  is  not  every  right  of  person,  and  still  less  of  property, 
that  can  lawfully  be  asserted,  or  every  wrong  that  may  right- 
fully be  redressed,  by  extreme  remedies.  There  is  a  reckless- 
ness— a  wanton  disi*egard  of  humanity  and  social  duty — in 
taking,  or  endeavoring  to  take^  the  life  of  a  fellow  being  in 
order  to  save  one's  self  from  a  comparatively  slight  wronir, 
which  is  essentially  wicked  and  the  law  abhors.     You  may 


he  nii^ 
altliiuig 
woiuul 
22  Gra 
It  :v; 
For  a 
assault 
may  do 
tion  inv 
coniieeti 
in  lieu 
cussed. 

There 

V  the 

t-'cnimen 

Fort 


I  f 
i  I 


MOXTOOMERY  v.  COMMONWEALTH. 


159 


not  kill  because  you  cannot  otherwise  effect  your  object, 
although  the  object  sought  to  be  effected  is  right.  You  can 
only  kill  to  save  life  or  limb,  or  prevent  a  great  crime,  or  to 
accomplish  a  necessary  public  duty."  See,  also,  1  Bish.  New 
Cr.  Law,  §§  839,  841,  850. 

Iti  the  light  of  these  elementary  principles,  and  in  view  of 
the  facts  of  this  case,  it  is  clear  that  the  instruction  given  by 
tlic  court  was  erroneous,  calculated  to  mislead  the  jury,  and 
very  prejtulicial  to  the  rights  of  the  prisoner.  Conceding  thai 
the  prisoner  was  a  trespa.-^ser,  and  that  he  ought  to  have 
promptly  left  the  premises  when  ordered  to  do  so,  still  this 
(lid  not  justify  the  assault  made  upon  him.  Davidson,  armed 
with  a  recently  sharpened  corn-cutter,  advancing  u[)on  the 
prisoner  and  saying  that  he  would  see  about  his  h'aviug,  was 
well  calculated  to  excite  in  the  prisoner  apprehension  of  great 
bodily  harm.  Under  such  circumstances  the  prisoner  had  the 
right  to  defend  himself  within  the  limits  of  the  law,  and  the 
jin-y  should  have  been  so  instructed. 

There  was  no  error  in  refusing  to  give  defendant's  instruc- 
tion Xo.  2.  Although  the  evidence  might  not  prove  a  malicious 
cutting  and  wounding  with  intent  to  maim,  disfigure,  disable 
and  kill,  the  defendant  was  not  necessarily  entitled  to  an 
acquittal,  for  if  the  evidence  proved  an  unlawful  cutting  and 
wouiuling  with  such  intent,  or  merely  an  assault  and  battery, 
be  might  have  been  convicted  of  either  of  these  latter  offences, 
although  the  indictment  charged  a  malicioiis  cutting  and 
Mounding  with  intent,  etc.  Code,  sec.  4040;  Canada's  Case, 
22  Gnitt.  801). 

It  was  error  to  refuse  defendant's  instructions  Nos.  3  and  4. 
For  a  mere  trespass  upon  land,  the  owner  has  no  right  to 
assault  the  trespasser  with  a  deadly  w(>apon,  the  result  of  which 
may  be  to  kill  him  or  do  him  great  l)odily  harm. .  The  ques- 
tion involved  in  these  two  instructions  has  been  considered  in 
connection  with  instruction  "A"  which  was  given  by  the  court 
in  lieu  of  Xos.  3  and  4,  and  need  not  therefore  be  further  dis- 
cussed. 

There  was  no  error  in  refusing  instruction  Xo.  .5  asked  for 
by  the  defendant.  The  instruction  is  so  plainly  erroneous  that 
comment  is  not  necessary. 

For  these  reasons  the  judgment  of  the  County  Court  of  Rock- 


160 


AMERICAN  CRIMINAL  REPORTS. 


i\! 


Iridrro  Connty  mnst  bo  rcvrrspd,  the  verdict  set  nsirle,  and  w 
TU'W  triiil  awarded  to  be  had  in  accordance  with  tho  views 
herein  expressed.  ■ 

Eeversed. 

NoTKs  (by  J.  P.  G.).— After  the  above  reversal,  Montgomery  was 
twice  tried,  each  time  convicted,  and  each  conviction  reversed  by  the 
Supremo  Court  of  Appeals, 

An  IntcrpKling  point  made  In  the  second  reversal  is,  that  an  instntc- 
Hon  may  state  law  correctly  and  so  as  to  be  understood  by  lawyers; 
yet  it  viay  he  misleading  to  jurors,  and  he  prejudicial  error. 

It  Is  somewhat  remarkable  that  it  appeared  In  evidence  in  the  third 
trial,  for  the  first  time,  that  the  encounter  did  not  take  place  upon 
property  In  the  possession  of  Davidson;  but  upon  property  leased  liy 
Davidson  to  a  tenant;  hence,  Montgomery  was  not  a  trespasser,  sub- 
ject to  the  order  of  Davidson. 

To  niiilsn  a  full  report  of  this  Interesting  case,  and  at  the  same  time 
to  crononiizo  space,  we  give  the  opinions  in  the  second  and  third  re- 
versals, as  a  part  of  these  Notc-3,  as  follows: 

MONTGOMERY   v.   COMMONWEALTH. 
98  Va.  S52— 37  S.  E.  Rep.  1. 
Decided  September  20,  1900.    ' 

CARDwni.L,  J.  Plaintiff  in  error  was  convicted  in  the  county  court 
of  Rockljridge  county  of  maliciously  and  feloniously  cutting  and 
wounding  one  William  E.  Davidson,  and  sentenced,  in  accordance  with 
the  verdict  of  the  jury,  to  confinement  in  the  penitentiary  for  a  t(  rm 
of  four  years,  but  upon  a  writ  of  error  from  this  court  he  was  awarded 
a  new  trial. 

At  the  July  term,  1900,  of  the  county  court,  the  prisoner  was  again 
tried,  convicted,  and  sentenced,  In  accordance  with  the  verdict  cf  the 
Jury,  to  inuiiisonment  In  the  penitentiary  for  the  term  of  3V.  years; 
whereupon  he  applied  to  the  judge  of  the  circuit  court  for  a  writ  of 
error,  whi<h  was  refused,  and  the  case  is  again  before  us  upon  a  writ 
of  error  awarded  by  a  judge  of  this  court. 

While  seme  of  the  witnesses  at  this  second  trial  testified  In  different 
phrascolcgy,  and  perhaps  in  stronger  terms,  than  at  the  former  trial, 
the  case  made  for  the  commonwealth  is  substantially  the  same  as  be- 
fore, and  is  a^  follows: 

The  prisoner  went  upon  the  lands  of  Davidson  for  ti.e  purpose  of 
selling  a  gun  to  Reed  Tyler,  one  of  the  hands  on  the  place.  While  in 
conversation  with  Tyler  and  John  Randolph,  a  tenant  on  the  prem- 
ises, Davidson,  who  was  riding  by,  was  called  up  by  Randolph,  who 
said  to  him,  "Mere  is  a  man  who  says  he  is  going  to  hunt  anyhow," 
Davidson  then  told  the  prisoner  that  he  could  not  hunt;  that  the  land 
was  posted  to  white  and  black,  and  asked:  "What  are  you.here  for?" 
to  wMch  the  prisoner  replied,  "Reed  Tyler  has  bought  my  gun  for 
?3.00,"  which  statement  was  confirmed  by  Tyler,  who  was  present. 
Prisoner  also  said  that  "he  was  not  hunting,  but  that  he  had  seen  no 


MONTODMERY  v.  COMMONWEALTH. 


161 


notlrc,  and  If  lie  had  s'-en  anything  he  would  have  shot  at  it;"  or 
"tlint  ho  was  not  particularly  hunting,  but  if  he  had  seen  anything 
he  would  have  shot  at  It,  r.s  he  had  seen  no  notices."  Davidson  then 
told  prisoner  that  if  he  hnd  transarted  his  business  to  leave.  Prisoner 
replied,  "1  will  go  when  I  get  ready,"  or  "when  I  feel  like  It."  David- 
son then  said,  "I  will  soe  about  that."  He  was  then  up  near  the 
porrli,  anil  the  prisoner  was  sitting  on  the  porch.  With  the  declara- 
tlcn  that  "he  would  see  about  that,"  Davidson  got  off  his  horse  on  the 
sl.lo  away  from  the  prisonor,  passed  under  his  horse's  neck,  and 
reir  litd  out  for  the  gun,  saying,  "Give  me  that  gun,  and  leave  here;" 
whereupon  the  prisoner  Jumped  up,  and  sprang  back  10  or  12  feet 
frcni  Diividson,  and  said,  "If  you  fool  with  me  [or  "bother  me,"  or 
"conic  hero,"  according  to  various  witneases],  I  will  shoot  you,  damn 
you."  Davidson  turned  around,  and  grabbed  a  corn  cutter  18  Inches 
Icng,  and  sharp,  having  been  ground  or  filed  a  few  hours  before. 
Prisoner,  still  backing,  repeated  his  statement,  saying,  "I  will  shoot 
you,  damn  you,"  and  held  his  gun  cocked,  towards  Davidson,  but 
down  by  his  side.  Davidson  said,  "I  don't  care  for  your  gun,"  and 
sprans  at  jiiisoner,  and  knocked  the  gun  up  with  his  left  hand,  and 
both  barrels  went  off  in  the  air,  and  the  barrels  of  the  gun  about 
this  time  were  broken  from  the  stock.  They  then  clinched  and  fell, 
seme  no  or  35  steps  from  where  they  started,  Davidson  on  top,  beating 
prisoner  with  his  flat.  After  prisoner  had  cried,  "Take  him  off,"  and 
Randoli)h  had  exclaimed,  "My  God,  are  you  going  to  see  him  kill  the 
man,"  Davidson  was  taken  off,  and  prisoner  left,  Davidson  throwing 
the  stock  of  the  gun  at  him.  In  the  fight  Davidson  received,  It  does 
not  clearly  appear  how,  a  cut  and  some  abrasicns  on  the  head  and 
face.  The  whole  affair,  from  the  time  Davidson  got  oft  his  horse 
until  they  clinched,  occupied  but  "a  moment  of  time;  very  quick, 
quicker  than  it  takes  to  tell  it," — as  the  witnesses  express  it. 

T!ie  first  assignment  of  error  rela'.es  to  the  refusal  of  the  court  to 
give  certain  Instructions  asked  for  by  the  prisoner,  and  the  giving  of 
its  own  motion,  in  lieu  thereof,  the  following: 

"The  court  instructs  the  jury  that  W.  E.  Davidson  had  the  right  to 
require  the  accused  to  leave  his  premises,  and  that,  if  the  accused 
refused  to  leave  when  so  requested,  the  said  Davidson  hpc?  the  right 
to  use  such  force  as  was  necessary  to  eject  him  from  h' .  premises, 
but  not  to  endanger  his  life  or  do  him  great  bodily  harm." 

Instructions  1,  2,  2VL'f  and  3V.,  asked  for  and  refused,  may  be  dis- 
posed of  tcgether.  They  amount,  In  substance,  to  telling  the  jury  that 
the  evidence  was  not  sufficient  to  convict  the  prisoner.  In  the  view 
th:;t  v,e  take  of  the  case,  it  is  sufficient  to  say  that  this  Is  not  the 
practice  in  the  courts  of  this  state. 

Instruction  No.  8,  refused,  tcld  the  jury  that  if  they  believed  from 
the  evidence  that  the  prisoner  came  upon  the  lands  of  Davidson  tor 
the  lawful  purpose  of  selling  his  gun,  or  even  if  they  believed  that 
h3  came  upon  the  land  to  hunt,  and  refused  to  go  when  ordered,  and 
that  upon  his  refusal  to  go  Davidson  got  down  off  his  horse,  saying, 
"I  will  see  about  that,"  or  words  to  that  effect,  and  started  towards 
Vol.    XIII— 11 


1G2 


AMERICAN  CRIMINAL  REPORTS. 


tlio  iJilscnor,  demanding  his  Run.  and  that  then  the  prisoner  JiiniiuMl 
lit)  and  lacked  back  10  or  15  feet,  and,  holding  hla  gun  In  hlB  hands, 
B.'ld  to  DavldKon,  "If  you  hurt  ine,  I  will  shoot  you,  damn  you,"  or 
wordH  to  that  effect,  and  that  David -on  replied,  "I  am  net  at-ald  cf 
your  gun,"  and  picked  up  a  corncutter,  and  started  for  prisoner,  ami 
IirlT^oner  further  said,  "I'll  shoot  you,"  then  there  Is  nothing  In  tluiso 
facts  to  warrant  the  belief  or  assumption  that  Davidson  was  nctiim'  in 
self  defense,  but  there  Is  sulllelent  In  these  facts  to  waiittiit  the  liclief 
and  assumption  that  the  prisoner  was  acting  In  self-defense,  and 
within  his  rights,  and  that.  If  they  believed  the  above  facts,  then  tlioy 
should  regard  Davidson  as  the  aggressor  from  the  beginning,  and 
find  the  prisoner  not  guilty. 

Instruction  Xo.  9  told  them  that  if  they  believed  from  the  evidence 
that  the  prisoner  was  a  trespasser  upon  the  lands  of  Davidson,  and 
that  he  ought  to  have  prom|)tly  left  when  ordered  to  do  so,  still  this 
did  not  justify  an  asiault  upon  him,  even  though  Davidson  could  not 
otherwise  effect  the  remcvai  of  the  prisoner;  and  that,  if  they  further 
believed  from  the  evidence  that  Davidson  did  start  towards  the  |)iis- 
oner  in  a  threatening  manner  with  a  corncutter,  then  the  prisoner 
was  justified  in  defending  himself,  and  if  he  believed  that  his  life  was 
in  danger,  or  that  he  was  in  danger  of  great  bodily  harm,  his  right 
of  defense  extended  to  the  killing  of  Davidson,  and  he  Is  not  guilty. 
Further,  that,  in  this  connection,  the  mere  attack  upon  the  pri.soi.cr 
with  a  deadly  weapon  was  a  fact  of  itself  sufficient  to  raise  the  pre- 
Bumptlcn  that  the  life  cf  the  prisoner  was  in  danger,  or  that  he  was 
in  danger  of  great  bodily  harm,  and  sufficient  of  Itself  to  raise  the 
presumption  that  the  prisoner  did  believe  his  life  was  in  danger,  or 
that  he  was  in  danger  of  great  bodily  harm,  and  therefore,  If  lliey 
believed  these  facts,  no  other  evidence  was  necessary  to  prove  that 
prisoner's  life  was  in  danger,  or  that  he  was  in  danger  of  great  bodily 
harm,  ov  to  prove  that  prisoner  believed  his  life  was  in  danger,  or 
that  he  v.as  in  danger  of  great  bodily  harm,  and  it  made  no  difference 
whether,  as  a  matter  of  fact,  Davivlson  really  meant  to  kill  or  do 
great  bodily  harm,  since  the  use  of  a  deadly  weapon  made  danger 
apparent,  which  was  sufTiclent. 

These  instructions  are  in  accord  with  the  opinion  cf  this  court  as  to 
the  law  cf  the  case,  when  it  was  here  before  upon  practically  the  same 
state  of  facts,  and  propound  correctly  the  law  of  self-defense,  too  well 
settled  to  require  citation  of  further  authority.  Montgomery  v.  Com., 
98  Va.  810,  3G  S.  E.  371. 

The  instruction  "a"  given  by  the  Court  in  lieu  of  instruction  S  and 
9,  refused,  is  identical  with  the  one  given  at  the  former  trial,  and 
held  erroneous  by  this  court,  except  the  last  12  words,  which  are 
italicized  above,  are  added. 

On  the  former  case  it  was  contended,  and  Instruction  "a"  given 
at  the  last  trial  sustains  the  view,  that,  if  the  prisoner  did  not  leave 
Davidson's  premises  when  ordered  to  do  so,  Davidson  had  the  right 
to  use  such  force  as  was  necessary  to  eject  him  therefrom.  In  the 
opinion  of  the  court  by  Harrison,  J.   (Montgomery  v.  Com.,  supra), 


MONTGOMERY  V.  COMMONWEALTH. 


163 


It  Is  paid:  "Conceding  that  the  iirlsoner  was  a  trespasser,  and  that 
he  (iiiKht  to  have  left  the  premises  when  ordered  to  do  so,  still  this 
(11(1  not  jUHtlfy  the  assault  made  upon  him.  Davidson,  armed  with  a 
r.diiliy  Kharpened  corncutter,  advancing  upon  the  prisoner,  and  say- 
iim  li!!il  he  would  i-ee  about  his  leaving,  wds  well  calculated  to  excite 
In  (lif  prlHoner  upprehenslon  of  great  bodily  harm.  Under  such  clr- 
cllnl^•lunl'es,  the  prisoner  had  the  right  to  defend  himself,  within  the 
Uiiiiis  (if  the  law,  and  the  jury  should  have  been  so  instructed."  It 
was  tnrlhcr  said  that  a  simple  trespass  upon  land  does  not  give  the 
cwti'  r  tlio  right  to  assault  the  trespasser  with  a  deadly  weapon,  the 
resiili  of  which  may  be  to  kill  him  or  do  him  great  bodily  hPM. 

Til'  giving  of  instruction  "a,"  with  the  words,  "hut  not  to  endanqer 
his  111''  <»'  ilo  him  nf'  ni  bodily  harm"  is  predicated  ui)on  an  erroneru.^ 
Intt'iiuvtatintl  of  the  opinion  of  this  court.  It  Is  obvious,  from  the 
npliildu  au  :  authorities  quoted  from  In  support  of  it,  that  the  view 
of  till-  court  was  that  the  instruction  was  not  applicable  to  the  case; 
and  ilu'  facts  which  the  evidence  at  the  last  trial  tended  to  prove 
bclr.^',  iis  we  have  observed,  practically  the  same,  the  adding  of  the 
hiltir  clause  to  the  Instruction  does  not  cure  that  objection.  It  is 
also  uiiKinaMe  to  the  objection  that  it  is  inconsistent  with  instructions 
.\os.  .'  and  7,  rightly  given  for  the  prisoner  at  the  last  trial,  Xo.  5 
Icinu  Identical  with  No.  15,  asked  for  by  him  and  refused  at  the  lirst 
trial,  and  held  by  this  court  to  be  a  correct  Instruction. 

It  (annot  be  said  that  the  refusal  to  give  the  prisoner's  instruiliona 
8  and  0,  and  the  giving  in  lieu  thereof  instruction  "a,"  is  cured  by 
ether  instructions  given  for  the  prisoner,  while  perhaps  this  might 
Iiave  been  true  had  not  instructions  1  and  2,  asked  for  on  behalf  of 
the  commonwealth,  been  given.     They  are  as  follows: 

"(1)  The  court  instructs  the  jury  that,  on  a  trial  for  malicious  cut- 
ting and  wounding  another  with  Intent  to  maim,  disfigure,  disable,  or 
kill,  the  law  of  self-defense  Is  the  law  of  necessity,  and  the  no;csaity 
relied  on  to  justify  any  cutting  or  wounding  of  another  must  not  arise 
out  of  the  prisoner's  own  misconduct;  and  if  the  jury  believe  from  the 
evidence  that  the  prisoner,  Daniel  Montgomery,  assaulted  W.  E.  Dav- 
idson, and  thereby  brought  about  the  necessity  for  cutting  or  wounding 
of  said  \V.  E.  Davidson  by  a  plea  of  necessity,  unless  he  was  without 
fault  in  bringing  the  necessity  upon  himself. 

"(2)  The  court  Instructs  the  jury  that  If  they  believe  from  the  evi- 
dence that  the  prisoner  was  on  the  land  of  W.  E.  Davidson  without 
authority,  and  that  W.  E.  Davidson  approached  the  prisoner  and  or- 
dered him  off  the  land,  and  the  prisoner  refused  to  go,  and  If  they 
further  believe  from  the  evidence  that  the  prisoner  cocked  his  gun 
and  presented  the  same  at  the  said  W.  E.  Davidson,  and  that  the  said 
W.  E.  Davidson  had  reason  to  believe  that  the  prisoner  was  about 
to  shoot  him,  then  the  said  W.  E.  Davidson  had  the  right  to  use  all 
reasonable  and  necessary  means  to  protect  himself  from  the  appre- 
hended Injury  to  him." 

The  first  practically  told  the  jury  that,  if  the  prisoner  was  in  fault 
ia  bringing  about  the  necessity  for  the  assault,  then  he  could  not 


164 


AMERICAN  CRIMINAL  REPORTS. 


M  i 


plead  self  defense;  and  when  Instructions  1  and  2  are  read  togelhpr 
In  connection  with  Instruction  "a,"  they  are  well  calculated  to,  and 
doubtless  did,  mislead  the  jury  to  the  conclusion  that,  If  the  prisoner 
«as  merely  In  fault  in  refusing  to  go  when  ordered  away,  Davidson 
was  right  in  resorting  to  the  force  he  employed  to  remove  him,  and 
prisoner  was  wrong  in  resisting  the  force. 

The  instructions  erroneously  proceed  upon  the  idea  that  the  evi- 
dence tended  to  prove  that  the  prisoner  assaulted  Davidson  befcro 
the  cutting  or  wounding,  leaving  out  of  view  the  evidence  goin?,'  to 
show  that  the  prisoner  retreated  Bntii  sprung  upon  by  Davidson  with 
a  deadly  weapon,  and  then  did  tae  cutting  or  wounding  In  the  light 
that  immediately  ensued. 

It  was  said  by  Riely,  J.,  in  Railroad  Co.  v.  Thomas,  92  Va.  COS,  2t 
S.  E.  2f>5:  "Calling  the  special  attention  of  the  jury  to  a  part  only 
of  the  evidence  and  the  particular  fact  or  facts  it  may  tend  to  prove, 
and  ignoring  the  residue  of  the  evidence  and  the  facts  it  may  (end  to 
prove,  gives  undue  prominence  to  such  recited  evidence,  and  disijoses 
the  jury  to  regard  it  and  the  fact  it  tends  to  prove  as  the  particnlar 
evidence  and  the  facts  to  be  relied  on  in  determining  the  issue  before 
them,  and  thus  mislead  them." 

"Instructions  In  writing  are  carried  by  the  jury  to  their  room, 
where  they  retire  to  consider  of  their  verdict,  and,  if  they  contain  a 
rehearsal  of  a  part  only  of  the  evidence,  their  tendency  is  to  inii)re:rj 
mainly  upon  the  jury  such  part  of  the  evidence,  to  the  disadvantage 
of  the  other  evidence  In  the  case,  which  may  be  equally  or  more  im- 
portant in  determining  the  issue,  but  rests  only  in  the  memorv  of 
the  jury."  Railroad  v.  Joyne's  Adm'r,  92  Va.  354,  23  S.  E.  773;  Ilam^ 
brough  v.  tieal,  94  Va.  722.  27  S.  E.  593;  Kimball  v.  Borden,  95  Va. 
203,  28  S.  E.  207. 

In  discussing  whether  or  not  contradictory  or  inconsistent  instrnc- 
tlons  are  prejudicial,  it  is  said  by  Keith,  P.,  in  Jackson's  Case,  Ul  Va. 
764,  33  S.  E.  548:  "It  has  been  said  by  this  Court  that  all  error  is 
presumed  to  be  prejudicial,  and,  while  it  has  approved  verdicts  ren- 
dered upon  erroneous  instructions,  it  dees  so  with  great  caution,  and 
-^nly  wnen  it  clearly  appears  that  no  Injury  could  have  resulted  from 
the  error.  A  lawyer  reading  the  instructions  In  this  case  would 
scarcely  be  misled  by  them,  but  instructions  are  given  to  juries  be- 
cause they  are  not  lawyers.  They  are  given  to  aid  the  jury  in  reach- 
ing a  right  conclusion,  and  not  In  order  to  exercise  their  skill  in  re- 
conciling contradictory  propositions." 

If  it  were  conceded  that  there  is  evidence  tending  to  prove  that  the 
prisoner  cocked  his  gun  and  presented  It  before  Davidson  picked 
up  the  corncutter  and  sprang  at  him,  the  instruction  No.  2  given  for  the 
commonwealth  should  net  have  singled  out  this  evidence,  and  ignored 
the  evidence  tending  to  prove  seltdefense  on  the  part  of  the  prisoner. 

We  are  further  of  opinion  that  the  prisoner's  instructions  S  i-r.u  9 
rightly  set  out  the  conduct  of  both  parties  as  the  evidence  tended  to 
prove  it,  and  correctly  propounded  the  law  applicable  to  the  case, 
and  that  the  court  below  erred  in  refusing  to  give  them,  and  in  giving 
in  lieu  thereof  its  own  instruction  "a." 


MONTGOMERY  v.  COMMONWEALTH. 


165 


The  judgment  of  the  Circuit  Court  will  be  reversed  and  annulled, 
the  verdict  of  the  jury  set  aside,  and  a  wew  trial  awarded,  to  be  had 
in  accordance  with  this  opinion. 

MONTGOMERY  v.   COMMONWEALTH. 

99  Va.  8^3—37  S.  E.  Rep.  841. 
Decided  February  7,  1901. 

PnrwiAn.  .T.  Daniel  Montgomery  was  indicted  In  the  County  Court 
for  Roci:hridge  County  for  maliciously  cutting  and  wounding  William 
E.  Davidson  with  intent  to  maim,  disfigure,  disable,  and  kill,  and  was 
convlfted  and  sentenced  to  four  years'  imprisonment  in  the  peniten- 
tiary. This  court,  at  Its  June  term,  1900,  set  aside  the  judgment  and 
verdict  and  awarded  a  new  trial.  (98  Va.  840.)  The  prisoner  was 
again  convicted,  and  a  new  trial  was  again  awarded  him  by  this  court 
at  its  September  term,  1900.  (98  Va.  S52.)  He  has  been  convicted 
the  third  time,  and  sentenced  to  four  years'  Imprisonment  in  the  peni- 
tentiary. A  writ  of  error  was  refused  by  the  judge  of  the  Circuit 
Court,  and  awarded  by  one  of  the  judges  of  this  court. 

The  two  reversals  were  because  of  errors  committed  in  instructing 
the  jury.  The  case  is  now  before  us  on  the  correctness  of  instruction 
Xo.  9  asked  for  by  the  prisoner,  and  refused  by  the  court,  and  on  the 
refusal  of  the  county  court  to  set  aside  the  verdict  because  contrary 
to  the  evidence. 

The  facts  are  substantially  the  same  as  on  the  first  and  second  trialj, 
except  that  it  now  clearly  appearr  that  the  difficulty  occurred  on 
premises  which  were  in  the  possession  of  John  Randolph,  a  tenant  of 
W.  E.  Davidson;  and  that  Davidson  was  cut  with  the  corn  cutter 
with  which  he  assaulted  Montgomery,  and  which  the  latter  got  from 
him  in  some  way.    The  Instruction  referred  to  Is  as  follows: 

"The  court  further  Instructs  the  jury  that  If  they  believe  from  the 
evidence  that  Davidson  got  down  off  his  horse,  and  started  towards 
the  prisoner,  demanding  the  gun,  and  saying  he  would  see  about 
whether  the  prisoner  would  leave,  this  of  itself  was  such  a  threat 
and  demonstration  on  the  part  of  Davidson  as  to  warrant  the  prisoner 
in  placing  himself  In  a  position  to  defend  himself  and  ward  off  the 
threatened  assault;  and,  if  he  jumped  back,  with  gun  In  hand,  pointed 
and  coclced  at  Davidson,  and  said,  'If  you  fool  with  me,  I  will  shoot 
you,  damn  you,'  or  said,  'Don't  come  here,  for,  if  you  do,  I  will  shoot 
you,  damn  you,'  and  the  prisoner  added  In  quick  succession  the  further 
words,  'I  will  shoot  you,'  these  are  not  such  threats  on  the  part  of 
the  prisoner  as  warranted  Davidson  In  picking  up  a  corn  cutter,  and 
proceeding  to  attack  the  prisoner;  and.  If  you  believe  he  did  so,  then 
you  must  regard  Davidson  as  the  attacking  party,  and  find  the  pris- 
oner not  guilty." 

The  theory  of  the  Instruction  Is  that  P-'vIt'son,  by  getting  off  of  his 
horse,  demanding  the  gun,  and  telling  Montgomery  he  would  see  about 
his  leaving  when  he  got  ready,  made  an .  unjustifiable  assault  upon 
him,  which  gave  Montgomery  the  right  to  take  measures  for  his  de- 
fense; that  by  presenting  the  weapon,  which  was  lawfully  in  his  pos- 
session, as  a  menace  to  Davidson,  with  a  distinct  and  fair  warning 


1()G 


AMERICAN  CRIMINAL  REPORTS. 


that  he  would  use  It  if  he  was  further  attacked,  he  did  not  give  Dnvi  l- 
son  the  right  to  arm  himself  with  a  deadly  weapon,  and  with  it  t3 
augment  the  dangers  of  the  attack  already  begun. 

That  these  conclusions  are  correct,  we  cannot  doubt.  Montgomery 
was  on  Randolph's  premises,  not  on  Davidson's,  and  the  latter  hr.d 
no  right  to  order  him  away.  If  he  had  been  on  Davidson's  prenii  ■,  3, 
the  latter  would  have  had  the  right  to  order  him  away,  and,  if  he 
refused  to  go,  to  use  proper  force  to  expel  him;  but  that  right  dii] 
not  authorize  him  to  commit  a  breach  of  the  peace  in  the  o'.u.set. 
It  is  one  thing  to  commit  an  assault  and  battery  for  the  purpo-c  of 
expelling  a  trespasser,  and  quite  another  thing  to  lay  hands  on  i:i:n 
in  a  proper  manner  solely  to  expel  him.  In  the  one  case  the  tics- 
l)asser  has  the  right  to  strike  in  defense;  in  the  other  his  right  and 
duty  are  to  go.  If  Davidson  had  only  intended  to  use  the  pio,ier 
force,  he  had  no  right  to  demand  the  gun.  It  did  not  belong  to  him, 
and  no  improper  use  had  been  made  or  was  threatened  to  be  made 
of  it.  Xo  reasonable  conclusion  could  be  drawn  from  Davidson's  acts 
and  demand  than  that  he  intended  to  make  an  attack.  Being  in  the 
wrong,  his  duty  was  to  stop  when  warned  that  he  would  be  shot.  Th2 
warning  did  not  put  Montgomery  in  the  wrong;  but  his  disrei,' ;i(l, 
the  seizure  of  tlie  corn  cutter,  and  the  quick  and  violent  assault  thi-.c- 
with  entitled  him  to  defend  himself  as  far  as  nei-essary  to  prcvor.t 
bcdily  harm  to  himself.  Tha  instruction  w^uld  have  so  informed  tha 
jury,  and  should  have  been  given. 

The  motion  to  set  aside  the  verdict  should  have  prevailed.  The 
evidence  shows  that  Davidson  ordered  !\Iontgomery  to  leave  i)re:iiise3 
which  were  not  in  his  possession  or  under  his  control;  that,  l^oause 
Montgomery  said  he  would  go  when  he  got  ready,  Davidson  made  aa 
assault  upon  him,  and  a  demand  for  Montgomery's  property,  v.liich 
he  would  not  have  been  justified  in  doing  it  Montgomery  had  been  a  tres- 
passer on  his  possession;  that  Montgomery  got  up,  warned  Davidson 
that  he  would  shoct  him  if  he  persisted,  jumped  back  10  or  12  feet, 
was  immediately  set  upon  with  great  violence  by  a  man  armed  with 
a  dangerous  weapon,  was  disarmed  by  his  gun  being  discharged  wiiei 
knoclvcd  ui)  by  his  adversary,  and  by  its  breaking  in  two  from  a  lick 
which  made  bruises,  but  does  not  appear  to  have  caused  one  monieat's 
hesitation  on  Davidson's  part,  or  to  have  lessened  his  ability  to  over- 
come Montgomery;  that  Montgomery,  in  the  scuK'la,  got  i)os-e  siou  of 
the  corn  cutter,  gave  Davidson  one  cut  on  tlie  seal')  about  I'-j  inchei 
long,  was  pressed  back  30  or  40  yards,  thrown  to  the  ground,  and 
beaten  by  Davidson  after  he  was  down. 

The  witness,  Randolph,  testified  that  when  Montgomery  first  jmii:)ed 
back  "he  stood."  and  it  was  urged  that  he  then  lost  his  ri,L;lit  of 
defense  by  not  continuing  to  retreat.  We  think  not.  The  pause  i uuhl 
only  have  been  for  a  very  small  portion  of  time;  for  in  answer  to  tha 
question,  "How  long  was  it  from  the  time  Davidson  got  off  of  his  horse 
until  they  clinched?"  Randolph  replied:  "It  was  very  quick, — shoiter 
time  than  it  takes  you  to  ask  it  and  me  to  answer  it."  After  junr,)!:'.? 
back,  he  would  naturally  pause  for  an  instant    He  had  a  right  to  pause 


PEOPLE  V.  TILLMAN. 


167 


anrl  ascertain  whether  his  adversary  had  heeded  his  warning,  and  de- 
sisted cr  was  pursuing.  It  is  useless  to  consume  further  time  on  the 
facts;  of  this  case.  In  neither  of  the  records  which  have  been  in  this 
court,  nor  in  all  combined,  is  there  sufficient  evidence  to  warrant  the 
conviction  of  the  prisoner.* 

Tlie  judgment  muct  ba  reversed,  the  verdict  set  aside,  and  the  case 
remanded  to  the  Ccunty  Court  of  Ro'^kbridj^e  for  a  new  trial,  if  the 
court  and  prosecuting  attorney  consider  that  a  better  case  can  be 
made  out. 

(*)  Tlie  above  is  opinion  as  it  appears  in  the  99  Va.;  but  the  opin- 
ion as  it  appears  in  the  37  S.  E.  Rep.  also  contains  the  following: 

"If  the  commonwealth  shall  again  put  the  prisoner  on  trial,  another 
1  oint  made  in  the  pclition  may  arise,  and  therefore  we  will  pass  upon 
it.  Tho  court  refused  to  permit  the  prisoner  to  prove  what  was  tes- 
tified to  by  W.  E.  Davidson  on  the  first  trial;  Davidson  having  since 
died." 

This  point  will  be  best  disposed  cf  by  quoting  what  Judge  Allen 
said  in  Brogy's  Case,  10  Grat.  732,  733.  Referring  to  the  opinion  in 
Finn's  Case.  5  Rand.  701,  he  says:  "After  stating  that  in  civil  cases, 
v.hor"  the  witne:s  is  since  dead,  what  he  swore  on  a  former  trial  may 
be  gi\en  in  evidence,  the  judse  proceeds:  'But  we  cannot  find  that 
tire  rule  has  ever  been  allowed  in  a  criminal  case;  indeed,  it  is  said 
to  lie  expressly  decided  ctl.erwise.'  And  all  the  judges  concurred  in 
the  ojdnion  that  the  evidence  was  inadmissible." 

"Tills  decision  has  never  been  controverted  in  Virginia  since.  The 
wliole  Criminal  Cede  has  since  undergone  a  revision,  but  the  rule  as 
laid  down  in  Finn's  Case  has  been  acquiesced  in  both  by  the  courts 
and  tlie  legislature.  I  do  not  think  it  necessary,  therefore,  to  go  into 
the  inquiry  whether  the  rule  was  originally  founded  on  proper  pria- 
ciiiles  or  not.  Tlie  rule  has  been  established  and  recognized,  and,  I 
think,  should  be  adhered  to;  and,  whether  a  foundation  had  been  laid 
for  its  introduction  or  not,  the  evidence  was  properly  excluded." 

Since  the  opinion  of  Judge  Allen  in  the  Brogy  Case  the  criminal 
laws  have  thrice  been  revised,  and,  as  the  legislature  has  not  seeu 
fit  to  disturb  the  rule,  we  feel  bound  by  the  decisions. 

We  think  the  evidence  of  Davidson's  former  testimony  was  properly 
excluded. 


People  v.  Tillman. 

132  Mich.  23—92  N.  W.  Rep.  499—9  Detroit  Legal  News  499. 

Decided  December  16,  1902. 

Assault   and  Battery — Self-defense:    Previous  altercation — Rigid   to 

anticipate  assault. 

A  previous  recent  altercation  between  the  same  parties  may  be  con- 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


iv^:4 


it 


S 


m 


I 


it . 


m 


168 


AMERICAN  CRIMINAL  REPORTS. 


sidered  as  bearing  on,  the  theory  of  self-defense;  and  as  to  whether 
the  defendant  had  a  right  to  anticipate  a  repetition  of  an  unlawful 
assault. 

Error  to  Circuit  Court,  Houghton  County ;  lion.  Albert  T. 
Strceter,  Judge. 

Arthur  A.  Tillman,  convicted  of  assault  and  battery,  brinjis 
error.    Reversed. 

The  difficulty  arose  in  the  defendant's  store,  over  some  tools 
which  Komoll,  the  prosecuting  witness,  had  pawned  with  or 
sold  to  the  defendant,  and  had  redeemed  or  repurchased.  ( Evi- 
dence conflicting.)  Komoll,"  at  the  time  of  the  alleged  assault 
and  fin  the  previous  day  on  the  street,  accused  the  defendiint 
with  keeping  some  of  the  tools;  and  each  time  an  atTr.iy  took 
place  between  them;  each  party  claiming  that  the  other  was  the 
aggressor. 

Tlio  court  instructed  the  jury  that  evidence  of  the  previous 
affray  could  only  bear  on  the  credibility  of  witnesses,  and 
added : 

"But  it  would  have  considerable  bearing — might  have  a  con- 
siderable bearing — if  the  case  rested  alone  on  the  com])laiiiiui! 
witne-s  and  on  the  testimony  of  the  defendant  as  to  which  one 
was  likely  to  be  the  aggressor  on  the  night  of  the  12th." 

IF.  A.  Burritt,  for  the  appellant. 

Oscar  J.  Larson,  for  the  People. 

Gkaxt,  J.  We  think  the  court  erred  in  this  instruction. 
The  affray  took  place  in  the  respondent's  store.  He  claimed 
that  he  acted  in  self-defense.  The  complaining  witness  admitted 
that  he  was  under  the  influence  of  liquor  when  both  altercations 
occurred.  Previous  assaults,  the  conduct  and  threats  of  the 
coni))liiining  witness,  were  competent  for  the  jury  to  consider 
in  determining  the  state  of  mind  of  the  defendant  and  the  clntr- 
aeter  of  his  acts.  The  respondent  was  justified  in  acting  in 
view  of  the  surrounding  circximstances  as  they  ajipeared  to 
him  at  the  time.  If  the  complaining  witness  had  made  a  previ- 
ous assault  upon  him  for  the  same  cause  on  the  day  before,  and 
his  attitude  and  conduct  Averc  such  as  to  justify  a  belief  that  he 
was  in  the  act  of  conunencing  another  assault  upon  him,  the 
law  did  not  require  him  to  wait  until  an  actual  assault  had 
been  made.    Oalbra'dh  v.  Fleming,  00  Mich.  403,  27  N.  W.  5s  1. 

Ct)nviction  reversed,  and  new  trial  ordered.  The  other  jus- 
tices concurred. 


;:■! 


DAVIS  V.  STATE. 


169 


Davis  v.  State. 

Texas— Court  of  Criminal  Appeals— 76  S.  VV.  Rep.  466. 

Decided  October  21,  1903. 

Aggbavateu  Assault:    Adult  person. 

1,  An  adult  male  person,  is  one  who  is  twenty-one  years  old. 

2.  As  to  whether  the  accused  Is  an  adult  person,  or  not,  may  be  de- 

termined by  circumstances;   but  proof  of  carnal  intercourse  is 
not  sufhcient  to  show  that  he  was  an  adult  person. 

Appeal  from  District  Court,  Cherokee  County;    Hon.  Tom 
C.  Davis,  Judge. 
Diiii  Davis,  convicted  of  aggravated  assault,  appeals.     Re- 

Yorsoil. 

J.  A.  Bulloch,  for  the  appellant. 

Howard  Martin,  Assistant  Attorney  General,  for  the  State. 

11i;m)KKSon,  J.  Appellant  was  convicted  of  an  aggravated 
assault,  and  his  punishment  assessed  at  a  fine  of  $50;  hence 
this  ap])('al. 

The  indictment  charges  Dan  Davis  did  unlawfully  assatilt 
Eimiia  Brown,  a  female  then  and  there  under  the  age  of  1.5 
years,  and  did  then  and  there  have  carnal  knowledge  of  her, 
she  not  being  the  wife  of  said  Davis.  Another  count  cluirges 
ap))(Maiit  with  assault  with  intent  to  rape  said  Emma  Brown. 
The  (Miurt  submitted  rape,  assault  with  intent  to  rape,  and 
aggravated  assault.  The  only  (piostion  that  we  nerd  consider 
is  involved  in  the  sufficiency  of  the  evidence  to  sustain  the  con- 
viction. 

Appellant  contends  that  there  is  no  evidence  in  the  record 
showing  that  ai)j)ellant  was  an  adult  male  person,  and  that 
the  court  was  not  authorized  to  submit  this  issue  to  the  jury, 
nor  was  the  jury  authorized  to  find  appellant  guilty  of  an 
aggravated  assault.  The  State  insists,  on  the  other  hand,  that 
the  circumstances  here  show  appellant  was  an  adult  male  per- 
son, and  that  the  conviction  can  be  sustained,  referring  us  to 
Trac,/  V.  State,  44  Tex.  ;0. 

It  is  true  that  case  is  an  authority  maintaining  the  proposi- 
tion that  it  can  be  shown  by  circumstances  that  the  assaulting 

For  rases  In  previous  volumes  on  any  subject,  see  Talle  of  Topics  in 
this  volume. 


170 


AMERICAN  CRIMINAL  REPORTS. 


party  was  an  adult  male,  and  on  such  proof  tho  cnnvictifin  v.'w 
be  sustained  for  an  aggravated  assault.  But  in  that  case  tlic-.v; 
were  strong  circumstances  tending  to  show  the  main  fact;  tluii 
is,  in  that  case  defendant  was  spoken  of  as  a  man  who  ki'jir 
the  hotel,  and  wore  whiskers,  etc.  In  this  case,  aside  irnui  tli'" 
charge  contained  in  the  indictment  that  appellant  comniitteij  ii 
rape  np(.n  prosecutrix,  and  the  proof  tending  to  show  that  lie 
hnd  carnal  intercourse  of  lur,  there  is  absolutely  no  einiui:- 
slance  tenduig  to  show  that  he  was  an  adult  male;  that  is.  ;t 
lualo  person  21  years  of  age.  If  it  be  conceded  that  rape  cnii 
only  he  perpetrated  ly  an  adult  male  person,  then  unqiicsriii.i- 
ahly  the  ca.se  is  made  out;  but  that  such  is  not  th;'  c:i.;'  iIi 
records  of  the  courts  bear  abundant  testimony.  We  are  n  it 
authorized  to  indulge  any  presumption  against  appelhuit.  If 
he  is  convicted  of  any  olfcn.sc,  it  must  be  upon  evidince;  aiil 
here  we  find  no  evid(  nee  to  sustain  the  fact  that  he  was  an  aihi't 
male,  either  of  a  positive  or  circumstantial  character.  Acconl- 
ingly  we  hold  that  the  judgment  must  be  reserved  Ix'cau-e  uf 
the  insufHci(ncy  of  the  testimony.  Ajulrcws  v.  State,  l.'J  Tex. 
App.  343;  JIall  v.  State,  IG  Tex.  App.  0,  49  Am.  Kep.  M't; 
Bell  V.  State,  IS  Tex.  App.  53,  .'il  Am.  Rep.  293;  Eobin.san  v. 
State,  2.5  Tex.  App.  Ill,  7  S.  W.  Rep.  531. 

We  also  believe  the  court's  chnrge  on  impeaching  testiui'iiy 
was  erroneous.    It  is  not  necessary  to  discuss  other  matters. 

The  judgment  is  reversed,  and  the  cause  remanded. 


Gkaybill  v.   State. 

41  Tex.  Crlm.  Rep.  286—53  S.  W.  Rep.  851. 

Decided  November  29,  1899. 

Assault  with  Intent  to  Commit  Rape:    Force  an  essential  element, 
even  though  the  female  is  under  the  age  of  consent. 

1.  Improper  conduct  toward  a  girl  under  age  of  consent,  where  thfio 

is  no  effort  to  ravish  with  force,  is  not  an  assault  within  intent 
to  commit  rape, 

2.  Evidence  reviewed,  and  held  InsufBcIent. 


f 


For  cases  in  previous  volumes  on  any  subject,  see  Table  cf  Topica  in 
this  volume. 


App 

Eiissell 

Gilci 

rape,  a] 

n,  B 

L'oIjL 

Davi 

intent  t( 
liiiciiien 
Tlin-< 
an  assai 
out  her 
1">  yoia> 
threats, 
I'iijie  up( 
defeiidaii 
and  tho 
force,  tin 
«nt."    I 
are  sever 
we  view- 
Have  the 
The  Statl 
3-3  years! 
being  b(  tl 
ticld  of  jf 
wre.  aii(f 
a  ?:pring  | 
posed  to 
and  kiss 
the  hottoil 
on  li(  r  1(1 
the  row 
veck.     All 
hir.  iind 
on  his  ])iT| 
sack  of 
testified 
riiiuiineell 


m 


9 


GRAYBILL  r.  STATE. 


171 


Appeal  from  District  Court,  Smith  County;  lion.  J.  G. 
Russell,  Judge. 

(jilcs  Grajbill,  convicted  of  an  assault  with  intent  to  commit 
rniic,  appeals.    Keversed  and  remanded. 

7j.  JJ.  Braird,  for  the  appellant. 

liuhl.  A.  John,  Assistant  Attorney  General,  for  the  State. 

Davidson,  P.  J.  Appellant  was  convicted  of  an  assault  with 
iiitc  lit  to  rape,  and  his  iiunitihment  assessed  at  three  years'  con- 
fiiuiiieiit  ill  the  jienitentiary. 

There  are  f<jur  counts  in  the  indictment.  The  first  charges 
an  iissauit  to  rape  a  woman  hy  force,  threats,  and  fraud,  with- 
iiut  jar  cttnsont;  the  second,  an  assault  u])on  a  woman  under 
1.J  years  of  age,  not  the  wife  of  defendant,  hy  means  of  force, 
llnr;its,  and  fraud;  the  third  charges  an  assault  to  commit 
rajK'  upon  a  Avoman  under  15  years  of  age,  not  the  wife  of 
(Iffiiidiiiit,  hy  force,  threats,  and  fraud,  without  her  consent; 
ainl  the  f«iurth  count  charges  an  assault  to  rape  hy  means  of 
force,  threats,  and  fraud,  omitting  the  allegation  "without  con- 
!?(iit."'  There  is  no  question  raised  upon  the  indictment.  There 
lire  several  (piestions  suggested  for  our  consideration ;  hut,  as 
we  view  tie  record,  it  is  not  necessary  to  discuss  any  of  them, 
save  the  want  of  sufficient  evidence  to  support  the  judgment. 
The  State's  case,  in  suhstance,  is  that  the  prosecutrix,  who  was 
1.'}  years  of  age,  and  her  two  younger  sisters, — the  youngest 
being  between  9  and  10  years  of  age, — were  picking  cot  tun  in  a 
field  of  perhaps  75  acres.  The  defendant  came  to  where  they 
were,  and  offered  the  older  one  money  to  accomjiany  him  to 
a  s|iriiig  outside  the  field.  This  was  declined,  lie  then  pro- 
posed to  ]nck  cotton  for  the  girls  if  the  older  one  would  hug 
and  kiss  him.  This  offer  was  also  declined.  lie  then  caught 
the  lidttom  of  the  girl's  ajiron  with  one  hand,  and  the  third  linger 
en  li(  r  left  hand  with  his  other  hand,  and  pulled  her  across 
il;e  I'dw  to  where  he  was.  She  Ix-gan  crying  and  picked  iip  a 
ruck.  A])])ellant  desisted.  He  made  no  indecent  proposition  to 
lid',  and  the  only  other  act  testified  to  by  any  of  the  Avitnesseg 
on  his  ])art  was  that,  while  picking  cotton,  in  placing  it  in  the 
sack  of  the  prosecutrix  his  hand  rubbed  her  breast.  This  is 
testified  alone  by  her,  and  not  by  the  other  two  girls.  IIo 
rcnuiined  Avith  them  an  hour  or  more,  picking  cotton,  and  left, 


.1 


172 


AMERICAN  CRIMINAL  REPORTS. 


I' 


going  to  his  father's  residence,  some  miles  away.  The  prose- 
cutrix, and  perhaps  her  sisters  as  well,  went  to  a  neighljoi's 
house,  near  by,  and  told  them  that  the  accused  had  been  down 
tliero  "bothering  them"  by  tramping  on  their  cotton  sacks.  In 
any  event,  they  went  to  tlie  house  and  informed  them  of  the 
fact  that  the  defendant  had  been  thei'e,  and  one  of  the  women 
accompanietl  the  girls  to  the  cotton  field,  and  remained  witli 
them  until  about  sundown.  This  places  the  testimony  for  the 
prosecution  in  as  strong  light  as  the  record  will  justify.  Ap- 
pellant's theory  of  the  matter  was:  That  he  stojjped  at  the 
very  house  to  which  the  girls  afterwards  went,  for  d'^iner; 
some  of  the  ])arties  being  related  to  him.  After  dinner,  being  a 
stranger  in  the  community,  he  inquired  of  them  the  way  home. 
They  suggc.-ted  that  he  go  through  this  cotton  field,  to  save 
distance  in  going  around  it,  and  strike  the  road  on  the  opposite 
side.  Following  their  advice  he  went  through  the  field,  and 
found  the  three  girls  in  there  at  work.  That  he  had  tied 
around  each  arm  a  piece  of  ribl>on,  and  Lad  on  a  necktie.  When 
he  ajiproached  the  girls,  they  began  begging  for  the  ribbons,  and 
finally  laid  hold  of  him  and  untied  both  riblxms,  and  one  of 
them  took  off  his  necktie.  It  is  shown  that  he  had  the  ribbons 
before  he  approached  the  girls,  and  that  evening  the  girls 
returned  both  riblwns  to  one  of  the  witnesses  in  the  case,  and 
they  were  preserved  and  exhibited  upon  the  trial.  This  soonis 
to  be  about  the  substance  of  the  testimony  in  the  record,  and 
upon  this  appellant  was  condemned  to  serve  a  term  of  years  in 
the  State  penitentiary.  It  is  not  necessary  to  digcuss  the  state- 
ments of  facts.  It  is  plainly  and  palpably  insufficient  to  shuw 
an  intent  to  ravish  the  prosecutrix. 

Tl.e  judgment  is  reversed,  and  the  cause  remanded. 

Bkooks,  J.    I  fully  concur  in  this  opinion. 

IIexukhson,  J.  While  I  concur  in  the  disposition  of  t1ii> 
case  made  by  Judge  Davidson,  I  will  state  more  fully  my 
views : 

The  conviction  was  genei'al,  and,  if  the  proof  justified,  it 
coiild  Ix^  maintained  under  either  the  first  or  fourth  count  of 
the  indictment.  It  is  conceded  the  prosecutrix  was  under  15 
years  of  age,  and  was  not  the  wife  of  appellant.  The  evidenre 
tends  to  show  that  he  made  an  assault  on  her;  that  is,  he 
put  his  hands  on  her  without  her  consent,  evidently  with  intent 


lish  till 
with  p 
Xow 
above,  ■ 
elite  liii 
(,nly 
with 
festnti 
by  til 
the  Sti 
but  no 


Assault 
sir 
jut 

1.  It  a 


PEOPLE  V.  HITE. 


173 


lo  [xi'suade  her  to  copulate  with  him.  She  not  only  rcfu'^ed, 
bill  resisted  his  attempt,  and  thereupon  he  desisted.  Unques- 
li(p!iiil)l_v  there  was  lacking  here  that  sufficient  force  establishini; 
the  intent  of  appellant  to  copnlate  with  prosecutrix  without 
her  consent  which  is  required  by  law.  As  was  said  in  Dochcry 
v/Slalc,  So  Tex.  Cr.  K.  4S7,  34  S.  W.  281:  "To  constitute  the 
(itl'oiise  of  an  assault  with  intent  to  rape,  it  must  appear  from 
llie  ovidtnce,  lieyond  a  reasonahlc  doubt,  that  the  accused 
iiitoiuled,  if  it  became  necessary,  to  force  compliance  with  his 
desires  at  all  events,  regardh  ss  of  any  resistance  made  by  his 
victim."  And  see  Feffcrling  v.  Stale,  40  Tex.  486 ;  EUenherg 
c.  Sink',  30  Tex.  Cr.  R.  130,  35  S.  AV.  989.  In  order  to  con- 
stitute rape  on  a  girl  under  15  years,  Avith  her  consent,  thei'e 
iimst  be  an  assault,  and  the  use  of  force  (the  same  character  of 
force  r((iuired  in  an  assault,  the  want  of  consent  not  being  a 
iiecessiiry  element),  and  this  force  carried  far  enough  to  estab- 
lish the  ulterior  intent  of  appellant  to  have  carnal  intercourse 
with  prosecutrix  with  her  consent. 

Xow  in  this  case  prosecutrix  never  did  consent,  and,  as  stated 
above,  when  she  resisted,  appellant  withdrew,  and  did  not  prose- 
cute his  attempt  any  further.  At  the  most  the  force  used  was 
(.Illy  with  intent  to  persuade  her  to  have  carnal  intercourse 
with  him.  This  she  declined,  and  there  was  therefore  no  mani- 
festation of  an  ulterior  intent  on  his  part  to  copulate  with  her 
by  the  use  of  force,  either  with  or  without  her  consent.  From 
the  State's  theory,  he  was  evidently  guilty  of  an  indecent  assault, 
but  no  more. 


Peoplk  v.  ITite. 
135  Cal.  76— G7  Pac.  Rep.  57. 
Decided  December  14.  1901. 


Assault  with  Intent  to  Commit  Rohreby:  Evidence  sufficient — In- 
structions— Forms  of  verdict  submitted  at  the  request  of  the 
jury;  hut  no  form  for  the  lesser  grade  of  offense — Practice. 

1.  It  appears  from  the  evidence  that  the  accused  and  one  German 
who  were  strangers  to  one  Howard  were  drinking  with  him  in 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


':  'i  if 
,  ft  j.ji 


I 


I 


174 


AMERICAN  CRIMINAL  REPORTS. 


i'1 


i  4, 


a  saloon  until  three  o'clock  In  the  morning;  that  Howard  was 
Lnown  to  have  $25.00;  that  when  he  started  for  a  hotel  the  (Jth- 
ers  followed  him  and  overtook  him;  offered  to  take  care  of  him, 
taking  him  by  the  arms;  tried  the  doer  to  the  barroom  of  iho 
hotel,  iluding  it  locked,  and  then  shoved  him  across  the  sidewalk, 
btrll.lng  him  on  the  head  with  an  instrument,  making  a  liKnit 
as  laiRe  as  a  man's  fist,  he  falling  with  Hite  and  German  on 
top  of  him;  Howard  cried  out  "Murder — Highway  Robbery—- 
Police;"  Illte  and  German  ran  and  were  pursued  by  a  imllce 
offlcer;  held, — that  under  such  circumstances  it  was  the  peculiai 
province  of  the  jury  to  pass  upon  the  question  of  the  inte::tii;n 
with  which  the  assault  was  made,  and  that  such  evidence  wouM 
sustain  a  verdict  of  guilty. 

2.  On  behalf  of  the  accused  the  jury  were  simply  instructed  a"  to 

assault  with  intent  to  commit  robbery.  Afterwards  the  jury 
requesting  forms  for  verdicts,  were,  with  the  knowledge  of  the 
defendant  and  his  counsel,  given  forms  as  to  guilty  of  assault 
with  intent  to  commit  robbery,  and,  not  guilty.  Held,  that  thcio 
was  no  error  in  not  submitting  a  form  as  to  the  lower  grade  of 
the  offense. 

3.  Sending  forms  of  verdict  to  the  jury  by  the  sheriff  is  irregular; 

but  under  the  circumstances  of  this  case  It  was  not  prejudicial 
error. 
Commissioners'  Decision  No.  2. 

Appeal  from  tlio  Superior  Court,  Tehama  County;  II^ii. 
Edw.  Sweeny,  Jud^e. 

F.  L.  Hite,  eonvieted  of  assault  with  intent  to  coiuuiit  vi<h- 
hery,  appeals.     AfKrined. 

Scfh  IlamiUon.  and  Franh  Freeman,  for  the  appellant. 
Tirey  L.  Ford,  Attorney  General,  for  the  State. 

Gkay,  C.  1'ho  defendant  appeals  from  a  judgment  eonvict- 
ing-  him  of  an  assault  with  intent  to  commit  robhery  and  fn.ia 
an  order  denyini;'  him  a  new  trial. 

1.  The  principal  point  urged  on  this  ap])eal  is  that  the  vrr- 
dict  is  not  supported  by  the  evidence;  that  there  is  no  evi- 
dence to  show  that  defendant  intended  to  rob  the  prosecuting 
witness  Howard.  There  is  evidence  in  the  case  to  warrant 
the  following  statement  of  facts:  The  defendant  met  Howard 
for  the  first  time  at  1  o'clock  on  the  morning  of  the  10th  <l;i,v 
of  June  1901,  in  Hudson's  sf.loon,  in  the  town  of  Red  Hliitf. 
During  the  next  two  hotirs  the  defendant,  Howard,  and  a  iiinii 
named  German  had  several  drinks  together  in  that  saloon.  Goi- 
man  and  the  prosecuting  witness  had  also  met  for  the  tirsl 


PEOPLE  V.  HITE. 


175 


tiiiio  on  that  night.-  Tho  dcfemhint  mid  Gerinnn  had  been 
jiciiiiiiintcd  for  Mtvinil  ihiys  prior  thereto.  \t  li  o'cloek  on 
siu<l  morning  Howard  loft  said  wahion  with  tlu-  view  of  goini; 
to  bed  at  the  lied  iJlnfF  Hotel,  where  he  was  icgistered.  He 
wan  followed  by  (jennan  and  tlu'  defendani,  though  he  seems 
iKit  Id  have  Ik  en  awan;  that  he  was  followed  until  near  the  hotel, 
when  (i{  rnian  and  the  ih'tVndant  aijproachcd  him,  and  defend- 
ant ask(  (1  him  wlure  he  was  going,  to  whieli  ho  replied,  "Goint; 
to  the  li<(l  Bluff  Hotel  to  go  to  bed,"  whereupon  defendant  or 
Gtriiian  rennu'ked  that  tlnrv  would  tak(!  eare  of  him,  and  eaeli 
todk  iiiiii  by  an  arm,  and,  after  trying  the  (lo<ir  of  the  barroom  of 
the  lintel,  and  iiuding  it  locked,  they  shovecl  Howard  across  tJu' 
^•.i(le\valk  toward  the  street,  and  the  defendant  struck  him  on  l.he 
liiick  ]iart  of  the  t(  p  of  the  head  with  some  kind  of  an  instru- 
ment which  left  an  abrasion  and  a  lump  as  big  as  a  nuin's  fist. 
rjHin  the  <1(  livery  of  this  blow  all  three  of  the  parties  seem  to 
have  gone  heaillong  into  the  street,  Howard  fidling  on  the 
])()1t(ii:i  and  the  others  being  above  him.  Howard  inimediatelv 
raised  an  outcry  of  "Munhr!''  "Highway  robl)ery !''  and  "Po- 
lice!'' The  defendant  and  Gernnin  innnediately  fled  from  tho 
scene.  An  otHcer,  who  was  watching  the  ])roceedings  from  a 
point  (if  concealment,  gave  chase,  and  ran  by  where  the  defend- 
ant stood  in  the  street  in  the  shadow  of  some  trees,  recognized 
defendant,  ami  as  he  knew  him,  and  knew  where  he  worked, 
went  on  in  pursuit  of  (Jennan.  Some  15  minutes  later  he  rc- 
turiHMl  to  the  ctablo  where  defendant  Avorked,  and  found  him 
liitchiiig  up  a  horse  for  a  patron  of  the  stable.  The  i)roseeuting 
witness  ha<l  alniut  $25  in  gold  and  silver,  and  had  paid  for  the 
drinks  at  the  saloon  once,  and,  as  the  barkeeper  testifies,  had 
rattled  the  mom  y  in  his  pocket  in  presence  of  defendant.  He 
missed  none  of  this  money.  On  this  evidence  it  was  the  ])eciiliar 
province  of  the  jnry  to  determine  the  question  of  tho  intention 
with  which  this  vi(dent  and  unlooked-for  assault  was  made 
upon  a  half-drunken  stranger  at  3  o'clock  in  tho  morning.  This 
is  the  time  and  this  is  tho  way  in  which  robberies  are  some- 
times committed ;  and  we  are  not  greatly  surprised,  under  the 
circumstances,  that  the  prosecuting  witness  thought  himself  in 
the  hands  of  robbers,  and  cried  out  ''^lurder!"  ''Highway  rob- 
bery!" etc. ;  nor  is  it  a  matter  of  wonder  that  the  jury  drew  the 
same  inference,  i,'.:l  the  trial  judge  reached  the  same  conclusion. 


^^ 


J     5^ 

I  V 


na 


AMERICAN  CRIMINAL  REPORTS. 


Our  position  in  rt'fui?ing  to  intorfcre  with  the  ilt'cisj.,;, 
of  tho  trial  court  on  what  seenj.s  to  be  purely  a  quest idu 
ot  fact  linds  support  in  the  following  wcU-considcrcd  ciitcs; 
Pi'uiilc  i\  Woody,  48  Cal.  80;  People  v.  Johnson,  1:51 
Cal.  nil,  (;;{  Pac  842.  We  quote  from  the  latter  ease; 
**Thc  intent  of  a  person  cannot  he  proven  by  direct  and  posit iv«j 
evidence.  It  is  a  ([uostion  of  fact  to  he  proven  like  any  oilur 
fact,  hy  aet.H,  conduct,  and  circumstances.  ...  It  was  tho 
peculiar  province  of  the  jury  to  tind  tho  intent.  ...  If 
tho  facts  proven  were  such  that  the  jury  might  reasonably  inter 
the  intent  to  be  as  found  by  them,  we  would  not  be  justilied  in 
disturbing  the  finding.  We  cannot  say  as  a  matter  of  law  tiiat 
the  jury  was  not  justified  in  finding  the  intent,  as  alle^^cil 
from  the  acts  of  defendant  and  the  circumstanoea  under  which 
they  were  conunittcd." 

2.  At  the  ro(piest  of  the  defendant  the  jury  were  instructed 
ns  follows:  ''The  defendant  is  charged  with  an  assault  enm- 
niittcd  upon  the  person  of  one  Frank  Howard  with  the  intent 
then  and  there  to  commit  robbery.  The  prosecution  must  provo 
every  element  of  the  crime  with  which  defendant  is  chariicd 
beyond  a  reasonable  doubt,  or  you  must  acquit;  that  is  to  say, 
that  an  assault  was  in  fact  committed,  and  that  such  assault 
was  committed  with  the  intcnti»m  to  conunit  robbery.  In  (udor 
to  convict,  you  must  believe  from  the  evidence,  beyond  a  rea- 
sonable doubt,  both  that  the  defendant  committed  an  assault  ns 
charged  an<l  that  said  assault  was  coumiittcd  Avith  the  intent  to 
commit  robbery."  While  the  jury  were  deliberating  upon  their 
verdict,  the  court,  being  engaged  in  the  trial  of  another  det'etid- 
ant,  charged  with  complicity  with  the  defendant  herein  in  the 
eame  crime  of  which  this  defendant  stands  convicted,  the  sheriff 
appeared,  and  announced  that  the  juvy  desired  to  have  sent  to 
them  all  forms  of  verdict  which  might  be  rendered  against 
defendant  under  the  information,  v;hcreupon  the  resi)ective 
counsel  for  the  parties  to  this  action  started  in  to  prepare  forms; 
but  the  court,  being  of  the  opinion  that  this  would  delay  the 
trial  of  tlie  case  then  before  it,  suggested  to  counsel  that  he  him- 
self would  prepare  the  forms  of  verdict,  whereupon  he  framed 
two  forms, — one,  "Guilty  of  an  assault  Avith  intent  to  commit 
robbery,"  and  the  other,  "Not  gitilty," — and  presented  tlioso 
forms  of  verdict  to  the  respective  attorneys  for  the  people  and 


M'^ 


r: 


PEOPLE  V.  HITE. 


177 


the  tlefcmlnut,  and  they  expressed  their  sntisfaction  with  them. 
Till-  forina  were  then  given  by  the  judge  to  the  sheriff,  ami 
by  the  latter  to  the  jury.  This  is  complained  of,  first,  because 
the  action  of  the  court  was,  in  effect,  an  instruction  to  the  jury 
that  they  could  not  find  the  defendant  guilty  of  the  lesser  crime 
of  nssiiult.  It  is  not  unusual  for  counsel  for  the  defense  in 
cn.«ori  of  this  character  to  take  the  position  that  his  client  U 
litlur  giiilty  of  the  highest  crime  charged  against  him  in  the 
iiil'orniation,  or  else  he  is  not  guilty  of  anything;  thus  taking 
chalices  on  a  conviction  of  the  highest  offense,  an  acquittal,  or 
a  di.sagreeing  jury,  in  preference  to  a  compromise  verdict  of  a 
Icssci  crime.  This  was  the  theory  pursued  by  defendant's  coun- 
gtl  herein,  as  shown  by  the  quoted  instruction.  The  court 
having  also  adopted  this  theory  in  its  instructions  at  the  special 
instance  of  defendant,  the  latter  will  not  now,  in  the  absence  of 
niiy  effort  upon  the  trial  to  change  his  theory,  be  heard  to  com- 
plain becaiwe  the  court  continued  true  to  that  theory  to  the  end 
of  the  case.  Another  objection  urged  is  that  it  was  improper  to 
tlius  transmit  to  the  jury  forms  of  verdict  by  the  hands  of  the 
sheriff.  We  think  this  was  improper,  perhaps,  but  what  harm 
could  it  have  done  under  the  circumstances  disclosed  here  ? 
Ami,  besides,  the  counsel  for  defendant  was  present  when  this 
was  done,  and  no  objection  was  made  to  it,  but  the  counisel 
scoiiis  to  have  actively  co-operated  in  the  doing  of  this  very 
thing  that  he  now  complains  of  as  an  invasion  of  his  client's 
rights.  We  presume — the  record  not  showing  the  contrary — 
that  the  defendant  was  also  present  when  the  forms  were  deliv- 
ered to  the  sheriff.  In  the  absence  of  the  objection  that  might 
have  been  made  at  the  time,  we  see  no  error. 

We  advise  that  the  judgment  and  order  be  affirmed. 

We  concur:  Cooper,  C. ;  Chipman,  C. 

Peu  Curiam.  For  the  reasons  given  in  the  foregoing  opin- 
ion, the  judgment  and  order  are  affirmed. 


Vol.  XTTI— 12 


.'I 


-t 


178 


AMERICAN  CRIMINAL  REPORTS. 


State  v.  Goode. 

130  N.  C.  651—41  S.  B.  Rep.  3. 

Decided  April  8,  1902. 

Assault  with  Deadly  Weapon — Rioiit  to  Photect  the  Home  Acaixst 
iNTKiDEBs:  Reasonableness  of  force,  a  question  for  the  jury- 
Impartiality  of  the  law,  regardless  of  color. 

1.  The  defendant,  a  colored  woman,  testified,  that  a  collector  called 

at  her  home,  with  a  wagon  and  an  assistant  to  collect  an  in- 
stallment on  the  purchase  price  of  a  bedstead;  and  that  upon 
her  pleading  present  inability  to  pay  and  requesting  that  the 
matter  be  deferred  until  the  return  home  of  her  husband;  that 
with  rude  language,  and  over  her  repeated  protests,  the  collector 
proceeded  to  remove  articles  from  the  bed,  and  then  attemi)ted 
to  remove  the  mattress,  that  she  seized  a  small  baseball  bat, 
whereupon  he  swore  and  drew  his  fist  and  was  then  struck  with 
the  bat.  The  Court  charged  the  jury  that  on  her  own  testimony 
the  defendant  was  guilty; — held  error;  it  was  for  the  jury  to 
determine  whether  unnecessary  force  was  used. 

2.  The  entry  being  rude  and  unlawful,  the  defendant  bad  the  right 

to  eject  the  intruder. 

3.  Each  person's  home,  is  sacred  against  rude  and  unlawful  intru- 

sions. 

4.  "The  law  is  impartial,  and  extends  the  same  protection  to  all  alilie," 

regardless  of  color. 

Appeal  from  the  Superior  Court  of  Wake  County;  Hon. 
AV.  S.  O'B.  Robinson,  Judge. 

Lucinda  Goode,  convicted  of  an  assault  with  a  deadly  weapon, 
appealed.    Reversed. 

The  prosecutor,  a  white  man,  went  to  the  house  of  def(  ndmit, 
an  old  colored  woman,  to  collect  some  money  on  furniture  which 
had  been  sold  to  her  husband  on  the  installment  pUin.  She 
invited  him  into  her  house,  and  to  take  a  seaN  He  told  his 
errand.  She  said  she  could  not  pay,  and  his  testimony  is  that 
he  went  to  examine  the  bedstead,  when  the  defendant  batted 
him  on  the  back  of  his  head  with  a  baseball  bat.  On  cross- 
examination  he  said  he  had  removed  a  covering  or  two  from 
the  bed  when  he  was  hit  with  the  bat,  but  that  he  had  done 
this  only  to  see  if  the  bed  was  in  good  condition.  The  defend- 
ant testified  in  her  own  belialf  that  the  prosecutor,  accompanied 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


STATS  V.  GOODE. 


179 


hv  a  no^ro  man,  drove  up  to  the  sidewalk  in  front  of  her  house, 
bac'kcil  the  wagon  up  to  the  ditch,  and  both  of  them  got  out  and 
caiiui  in  the  porch.  Both  Avere  strangers  to  her.  She  invited 
tlic  ])i'osecutor  in  and  gave  him  a  seat  in  her  rocking  chair;  his 
companion  taking  a  scat  on  the  porch.  The  prosecutor  said  he 
had  (Minio  for  the  bedstead,  or  the  money  for  it.  She  replied 
that  i^liG  did  not  have  the  money  then,  and  asked  him  to  wait 
until  lier  husband  came.  The  prosecutor  jumped  up  out  of  the 
c'liair,  swearing,  said  he  had  to  have  his  money  then,  or  he 
would  take  the  bedstead  out  of  there,  or  die  and  go  to  hell  try- 
ing. He  then  walked  around  the  table  where  she  was  ironing 
and  wont  to  the  head  of  the  bed,  and  took  a  tablecloth  that  was 
]yiii!i  on  the  bed  and  threw  it  on  the  floor.  She  told  him  to  go 
cut  of  lior  house,  and  to  wait  till  her  husband  came,  and  not 
to  take  any  more  things  off  that  bed.  He  again  swore,  and 
said  lie  was  going  to  take  that  bedstead  oiit,  or  die  and  go  to 
hell  trying;  and  he  then  took  up  an  underskirt  that  was  lying 
on  tho  bed  and  threw  it  down  on  the  floor,  and  began  to  throw 
back  I  he  covering.  She  again  told  him  to  go  out  of  her  house, 
and  1(  t  her  things  alone,  and  he  kept  on  throwing  back  the 
coveviiig,  and  started  to  throw  back  the  mattress;  and,  as  he 
started  to  do  this,  she  picked  up  small  baseball  bat  that  her 
boy  phiyed  with,  and  walked  up  to  the  bed  and  said,  "Let  my 
thinus  alone;"  and  as  she  did  this  he  turned  sideways  at  her, 
and  drew  back  his  fist  and  said,  "You  must  be  a  damned  fool," 
and  she  hit  him  with  the  bat. 

Being  asked  the  question  why  she  hit  the  prosecutor  with 
tlio  l);it,  she  said,  ''Because  he  would  not  let  my  things  alone, 
and  CO  on  out  of  my  house."  She  was  corroborated  by  several 
other  witnesses. 

ITis  Honor,  upon  the  above  evidence,  charged  the  jury  that 
the  defendant  was,  upon  ^ler  own  testimony,  guilty  of  using 
excessive  force  upon  the  prosecuting  witness,  and  instructed 
the  jury  to  find  the  defendant  guilty.  Verdict  accordingly. 
Defendant  excepted  to  the  charge.  The  court  sentenced  the 
defendant  to  30  days  in  the  workhouse. 

W.  L.  Watson,  for  the  appellant. 

Robert  D.  Gilmer,  Attorney  General,  and  J.  C.  L.  Harris, 

for  the  State. 


180 


AMERICAN  CRIMINAL  REPORTS. 


Clakk,  J.  Wliether  there  was  excessi\'c  force  used  or  not 
was  a  question  for  the  jury,  not  for  the  court.  The  detVr.'l- 
ant's  testimony  was  fuller  than  that  of  the  prosecutor,  hut  was 
not  contradicted  by  him;  and  taking  it  to  be  true,  as  Ills 
Honor  assumed,  and  as  must  Ije  done  on  the  virtual  dcnnirrei- 
to  her  evidence,  these  are  the  facts:  Two  strangers,  one  of 
tliem  a  wliite  man,  came  to  the  defendant's  home.  She  invites 
the  latter  in  politely,  and  gives  him  her  rocking  chair;  witlimit 
showing  any  credentials,  he  demands  pay  for  her  bedstead. 
Upon  her  saying  she  had  no  money,  and  asking  him  to  wait 
lill  her  husband  came,  the  prosecutor  jumps  up  violently,  and, 
{^wearing  he  would  take  the  bedstead,  or  go  to  hell  trying,  ho 
throws  her  tablecloth  and  underskirt  on  the  floor.  She  \v\h 
him  to  let  her  things  alone.  As  she  was  ironing,  presnniaMv 
tliose  things  were  freshly  washed,  and  nicely  starched  and 
ironed,  and  he  must  have  known  that  to  throw  them  on  the 
floor  would  arouse  her  ire.  Then  he  laid  his  profane  hand.'^  on 
(he  paraphernalia  of  her  bed  and  began  to  throw  back  the  hed- 
(lothes  and  to  lift  the  mattress,  all  of  which  would  spi'cdilv 
have  gone,  of  course,  upon  the.  floor.  The  defendant  would  n(»t 
have  been  a  woman  if  she  had  stood  that.  She  seized  her  little 
boy's  baseball  bat,  and  told  him  to  let  her  things  alone  and  leave 
the  house,  when  he  squared  off  at  her,  drawing  back  his  list, 
and  called  her  "a  damned  fool,"  whereupon,  very  naturally, 
she  batted  the  back  of  his  head.  It  was  probably  a  "left 
lielder,"  for  the  prosecutor  soon  after  left  that  field.  Tlie 
counsel  for  the  prosecutor  tells  us  he  left  because  he  <lid  not 
wish  to  provoke  a  difficulty.  It  is  doubtful  if  he  coulil  do 
more  to  provoke  a  woman,  which  is  sometimes  Avorse,  and  it 
would  seem  that  he  left  rather  than  to  collect  another  install- 
ment on  the  batting. 

The  woman  was  in  her  own  house.  If  her  evidence  is  trne, — 
and  it  must  be  so  taken  on  this  appeal, — she  treated  the  in'o-^e- 
cutor  politely,  and  he  returned  her  politeness  by  swearino:, 
throwing  her  things  on  the  floor,  throwing  back  the  bcdclntlies 
and  mattress  and  avowing  his  intention  to  carry  off  hor  l)(d- 
stoad,  at  the  direst  hazard  to  his  soul,  and  drawing  havk  \\'\i 
fist  at  her  and  cursing  her  Avlien  again  told  to  desist.  It  cannnt 
be  said,  as  a  matter  of  law,  with  two  men  against  her,  and  in 
her  own  house,  she  used  excessive  force  in  protecting  her  person, 


if 


ill 


STATE  i;.  GOODB. 


181 


lier  liomo  and  her  property.  In  view  of  his  violent  conduct  and 
liuiiiiiage,  and  refusal  to  behave  or  to  leave  could  she  have 
pceurcd  her  rights  in  her  own  home  or  his  departure  by  the 
use  of  le«s  force  ?  Could  she,  with  safety  to  her  person,  have 
laid  hands  on  him  more  gently  ? 

If,  on  another  trial,  the  evidence  being  the  same,  it  shall 
be  held  that  this  was  excessive  force,  a  jury  must  so  declare  it. 
This  court  cannot. 

Sir  Edward  Coke  (3  Inst.  1G2)  says:  "A  man's  house  is 
his  castle,  et  domus  sua  cuique  tutissimum  refugium,"  wliich 
last  is  a  literal  quotation  by  him  from  the  famous  Corpus  Juris 
Civilis  of  Justinian,  and,  is  to  be  found  in  the  Pandects  (lib. 
2,  tit.  4,  "De  in  Jus  Vocando").  And  another  great  lawyer 
and  statesman,  whose  name  is  lx>rne  with  honor  by  two  of  our 
count  its, — ^William  Pitt,  earl  of  Chatham, — used  this  ever- 
mcuKirable  expression:  "The  poorest  man,  may,  in  his  cottage, 
bid  (k'tiance  to  all  the  forces  of  the  crown.  It  may  be  frail, 
its  roof  may  shake ;  the  wind  may  blow  through  it ;  the  storms 
may  outer;  the  rain  may  enter; — ^l>ut  the  king  of  England 
cannot  enter.  All  his  forces  dare  not  pass  the  threshold  of 
the  ruined  tenement." 

The  old  colored  woman  knew  nauglit  of  legal  lore,  but  she 
had  an  instinctive  sense  of  her  rights,  and,  by  means  of  the 
wooden  wand  touched  to  the  back  of  witness'  head,  she  com- 
iiuinioated  electrically  to  his  brain  the  same  conception  more 
effectually  than  if  she  had  read  to  him  the  above  citations. 

This  home  was  a  humble  one,  the  Ix^dstoad  on  which  defend- 
ant  slept  may  not  have  W'en  fully  paid  for.  But  the  prosecutor 
had  no  right  to  enter  that  home  and  misbehave,  or  refuse  to 
leave  when  ordered  out — still  less,  to  carry  off  any  property 
thcvefroiu,  unless  he  had  been  an  officer  with  a  legal  precept 
so  to  do;  and  the  occupant  of  that  home  had  the  right  to  use 
sufficient  force  to  make  him  leave,  and  to  abandon  his  attempt 
to  carry  off  the  bedstead,  and  to  stop  his  handling  of  the  other- 
projierty;  in  short,  to  make  him  "leave  her  things  alone,"  as 
tlie  defendant  repeatedly  told  him  to  do. 

Whether  the  force  used  by  the  defendant  was  excessive  is 
matter  for  a  jury.  Indeed,  if  this  evidence  is  to  be  believed, 
the  prosecutor  was  a  lawbreaker,  and  is  himself  in  jeopardy 


4 
^1 


*  ff 


i: 


13 


182 


AMERICAN  CRIMINAL  REPORTS. 


of  the  judgment  for  his  violence  and  his  defiant  disregard  of 
the  rights  of  the  defendant. 

Suppose  this  defendant  had  been  white,  and  the  proseiiitdi- 
a  negro  man.  The  law  is  impartial,  and  extends  the  same  pro- 
tection to  all  alike. 

Error. 


Mazzotte  v.  Tekritoky. 

-  Ariz.  — ,  —  71  Pac.  Rep.  911. 

Decided  Marcli  20,  1903. 

Assault  wrrn  Deadly  Weapon:    Circumstances  that  may  raise  pre- 
sumption that  a  pistol  was  loaded. 

1.  The  action  of  the  defendant  in  going  to  the  house  of  another,  en- 

deavoring to  call  him  out  for  the  purpose  of  killing  him  and 
then  when  informed  by  the  son  of  the  other  person,  that  the 
father  could  not  come  out,  the  calling  of  the  son  out  and  saying 
to  him,  "if  I  can't  get  your  father  I  will  get  you,"  followed  by  a 
shot  from  defendant's  pistol,  the  defendant  immediately  retreat- 
ing, justifies  a  verdict  of  assault  with  a  deadly  weapon;  even 
though  no  trace  of  the  bullet  could  be  found. 

2.  "A  deadly  weapon  is  one  which,  from  the  use  made  of  it  at  the 

time,  is  likely  to  produce  death  or  great  bodily  injury." 

Appeal  from  the  District  Court,  Graham  County. 
Pasquel  Mazzotte,  convicted  of  assault  with  a  deadly  weapon, 
appeals.     Affirmed. 

L.  Kearner,  for  the  appellant. 

Ed.  W.  Wells,  Attorney  General,  for  the  Territory. 

Sloax,  J.  A  single  question  is  presented  for  our  determina- 
tion on  this  appeal.  It  is  urged  that  the  proof  is  insuliiceiit  to 
sustain  the  judgment  of  conviction  of  an  assault  with  a  deadly 
weapon,  for  the  reason  tliat  the  evidence  did  not  establish  the 
lethal  character  of  the  weapon  used  by  the  defendant. 

The  proof  establishes  that  Mazzotte,  the  defendant,  on  tlio 
evening  of  July  2G,  1902,  went  to  the  house  of  one  Gregoria  Do 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


MAZZOTTE  V.  TERRITORY. 


183 


Grazia,  in  Morenci,  and,  standing  in  the  street,  called  to  Do 
Grazia,  and  invited  him  to  come  out.  Thereupon  Frank  Do 
Grazia,  a  son  of  Gregoria  De  Grazia,  tfame  to  the  door  and  said, 
"Wliat  do  you  wantf  Mazzotte  replied:  "Tell  your  father 
to  come  out.  I  want  to  kill  him."  The  son  said  that  his  father 
was  changing  his  clothes,  whcreui>on  Mazzotte  said,  ''You  come 
out."  The  son,  with  his  mother  and  little  hrother,  stepped  out 
of  tlie  house,  and  stood  in  front  of  and  a  little  to  one  side  of 
iho  door.  Mazzotte  then  said,  "If  I  can't  get  your  father  I  will 
got  you,"  and  immediately,  thereafter  pulled  out  a  pistol,  fired 
at  the  ho}',  and  then  turned  and  ran  away.  The  place  where 
^Mazzotte  stood  when  he  fired  was  about  forty  feet  from  th.) 
place  where  Do  Grazia  stood.  No  one  Avas  hit,  nor  was  any 
mark  of  a  bullet  found.  The  appellant  testified  that  he  wad 
drunk  upon  the  day  in  question,  and  had  no  recollection  of 
what  lie  did  or  what  took  place  at  the  time. 

There  was  no  other  evidence  tending  to  prove  the  deadly 
character  of  the  weapon  used  by  the  defendant. 

''A  deadly  weapon  is  one  which,  from  the  use  made  of  it  at 
the  time,  is  likely  to  produce  death  or  great  bodily  injury.  In 
a  case  of  doubt,  the  manner  in  which  the  weapon  is  used  may 
1)0  taken  into  the  account  in  determining  whether  or  not  it 
was  deadly."    liishop  on  Statutory  Crimes,  §  320; 

In  the  present  case  the  declaration  of  the  deiendant  at  thv- 
time  that  he  intended  to  kill  I)e  Grazia,  followed  by  his  act  of 
firing  the  pistol  in  the  direction  of  the  latter,  and  1  is  flight, 
wore  eivcunistances  from  which  the  jury  might  reasonably  have 
inf'  rred  that  th«j  pistol  used  was  loaded.  It  is  a  matter  within 
the  common  knowledge  of  men  that  almost  any  kind  of  a  pistol, 
if  loa(h'd,  and  fired  at  a  person  within  a  distance  of  40  feet, 
is  capable  of  inflicting  a  serious  wound. 

We  think  the  evidence  was  sufficient  to  justify  the  verdict  ot 
conviction  and  to  sustain  the  judgment. 

The  judgment  is  afliirmed. 

Kk.\t,  C.  J.,  and  Davis,  J.,  concur. 


a  k 


184 


AMERIC/.X  CRIMINAL  REPORTS. 


Likens  v.  State. 

63  Neb.  249—88  N.  W.  Rep.  506. 

Decided  December  18.  1901. 

Assault  with  Intknt  to  Inflict  a  Bodily  Injury:    The  term 
bodily  injury"  defined — Evidence — Practice, 


'great 


1.  The  words  "great  bodily  injury,"  as  employed  In  section  17b  of 

the  Criminal  Code,  imply  an  injury  of  a  graver  and  more  serious 
character  than  an  ordinary  battery. 

2.  A  conviction  under  said  section  17b  of  the  Criminal  Code  cannot 

stand  where  the  evidence  falls  to  disclose  that  the  accused  mak- 
ing the  assault  intended  to  inflict  great  bodily  injury  upon  the 
person  of  the  prosecuting  witness. 

8.  Rulings  upon  the  exclusion  of  answers  propounded  to  the  com- 
plaining party's  own  witness  on  his  examination  in  chief  can- 
not be  reviewed  where  he  has  not  made  and  preserved  In  the 
record  an  offer  of  proof. 
(Syllabus  by  the  Court.) 

Error  to  District  Court,  Rock  County ;    Hon 

Harrington,  Judge. 

Jeremiah  D.  Likens,  convicted  of  assault  with  intent  to  infliei 
great  bodily  injury,  brings  error.     Reversed. 

B.  R.  Dickson,  for  the  plaintiff  in  error. 
/''.  N.  Prout,  Attorney  General,  and  Norris  Brown,  Deputy 
and  J.  A.  Douglas,  for  the  State. 

IfoRVAL,  C.  J.  Jeremiah  D.  Likens  was  convicted  in  tlie 
eourt  below  of  an  assault  upon  Alva  Likens  with  intent  to  inflict 
great  bodily  injury,  and  was  sentenced  to  a  term  of  imprison- 
ment in  the  state  penitentiary.  The  defendant  has  brought  the 
record  to  this  court  for  review. 

It  is  first  urged  that  the  verdict  is  not  sustained  by  sufficient 
evidence.  In  Murphey  v.  State,  43  Neb.,  34,  61  N.  W.,*4J)1,  it 
was  ruled  that  the  words  "great  bodily  injury,"  as  employed  in 
section  17b  of  the  Criminal  Code,  imply  an  injury  of  a  graver 
and  more  serious  character  than  an  ordinary  battery.    A  carc- 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


LIKENS  V.  STATE. 


185 


ful  perusal  and  w  jidcration  of  the  entire  testimony  contained 
ill  till'  bill  of  exceptions  satisfies  us  that  the  offense  of  which 
the  tiocused  was  convicted  was  not  established  on  the  .trial 
beyond  a  reasonable  doubt.  It  is  disclosed  that  Alva  Likens, 
the  i)rosecuting  witness,  is  a  nephew  of  the  defendant,  both 
residing  in  the  town  of  Bassett.  The  former  runs  u  butcher 
shop,  and  about  the  1st  day  of  January  of  the  present  year  tho 
accused  sent  his  little  grandson  to  tho  shop  to  obtain  some 
oysters  or  meat,  but  gave  tlie  lad  no  money  to  pay  for  the  same. 
The  prosecuting  witness  refused  to  sell  to  the  boy  on  credit,  and 
the  latter  returned  home,  and  informed  his  grand-parents  of 
the  fact ;  whereupon,  on  the  same  day,  the  defendant  went  to 
the  butcher  sl'.op  to  sec  the  nephew  with  reference  to  refusing 
to  extend  credit,  and  an  altercation  between  them  followed^ 
during  which  defendant  struck  Alva  once  or  twice  with  his 
fist.  A  butcher's  knife  at  the  time  was  lying  upon  the  block 
in  the  shop,  and  it  was  and  is  the  contention  of  the  State  that 
the  defendant  seized  it,  and  struck  the  prosecuting  witness.  The 
testimony  adduced  by  the  accused,  and  the  circumstances  sur- 
rounding the  transaction,  make  it  pretty  clear  that  he  took  the 
knife  frcim  the  block  merely  to  prevent  the  prosecuting  witness 
from  getting  and  using  the  same  upon  the  defendant ;  that  the 
latter  had  no  intention  of  striking  his  nephew  therewith,  but 
that  in  the  scuffle  that  ensued  the  latter  accidently  received 
merely  a  slight  cut  or  wound.  The  most  that  can  be  reasonably 
claimed  from  the  evidence  before  us  is  that  the  defendant  was 
guilty  of  an  assault  and  battery.  The  element  of  an  intent  to 
inflict  great  bodily  injury  is  lacking. 

!More  than  one  error  is  assigned  for  the  exclusion  of  answers 
to  questions  propounded  to  the  defendant  by  his  counsel  upon 
direct  examination,  but  these  assignments  must  be  overruled, 
because  the  defendant  made  no  offer  of  proof  when  the  objec- 
tions were  sustained. 

The  verdict  being  unsupported  by  sufficient  evidence,  the 
judgment  is  reversed,  and  a  new  trial  awarded.    Reversed. 


ii: ! 


nr 


186  AMERICAN  CRIMINAL  REPORTS. 


State  v.  Battle. 

130  N.  C.  655—41  So.  Rep.  66. 

Decided  April  15,  1902. 

Assault:    Indictment— Ecrioiis  injury,  how  pleaded  in  the  indictment 

— Surplusage  rejected. 

1.  Under  the  North  Carolina  code  an  assault,  assault  and  battery 

or  affray,  where  a  deadly  weapon  Is  not  used  and  where  no  seri- 
ous Injury  is  Inflicted  Is  within  the  concurrent  jurisdiction  of 
the  Superior  Court  and  of  Justices  of  the  Peace.  In  such  case 
the  punishment  cannct  exceed  a  fine  of  $50.00  or  an  Imprison- 
ment  of  thirty  days. 

2.  To  constitute  a  valid  charge  of  a  mutual   assault  accompanied 

with  serious  Injury,  the  facts  showing  the  serious  Injury  should 
be  set  out,  that  the  Court  may  judicially  determine  what  grade 
of  the  offense  Is  charged. 

3.  To   simply  charge  that  they  did   "inflict  serloub  Injury  on  each 

other,"  dees  net  show  a  higher  grade  than  simple  assault;  aaj 
does  net  authorize  a  sentence  of  sixty  days'  imprisonment. 

4.  Insufficiency  of  the  evidence,  as  to  Injuries. 

Appeal  from  Superior  Court,  Wake  County;  Hon.  \V.  S. 
O'B.  Kobinson,  Judge. 

E.  S.  Battle  convicted  of  assault,  appeals.    Reversed. 

S.  E.  Mordecai,  J.  B.  Batchelor,  D.  L.  Russell,  and  W.  N. 
Jones,  for  the  appellant. 

Robert  D.  Gilmour,  Attorney  General,  for  the  State. 

MoxTGo:\rERY,  J.  There  is  only  one  question  involved  in 
this  appeal,  and  that  presents  no  difficulty  in  its  decii^ifn.  It' 
the  bill  of  indictment  be  stripped  of  a  half  dozen  superflnotis 
words,  it  will  readily  be  seen  upon  the  most  casual  inspection 
that  the  offense  charged  is  that  of  a  simple  assault, — a  mutual 
fighting  between  the  appellant,  Battle,  and  the  other  defend- 
ant, Powell, — occurring  during  the  September  Term,  1901,  of 
Wake  Superior  Court,  and  within  one  mile  of  the  court  house 
of  that  county.  The  jury  returned  for  their  verdict  that  the 
defendants  were  guilty  in  the  manner  and  form  as  charge<l  in 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


'.mi, 


!t;ii4l 


STATE    V.    BATTLE. 


187 


the  bill  of  indictment,  and  the  court  suspended  judgment  as  to 
the  defendant  Powell,  and  sentenced  the  defendant  Battle  to 
imprisonment  and  hard  labor  upon  the  public  roads  for  60 
days. 

Had  the  court  the  authority  to  impose  such  a  sentence, — to 
impose  a  sentence  for  more  than  30  days'  imprisonment,  or  a 
fine  (if  $'»0  i  That  is  the  only  question  in  this  appeal,  and  the 
answer  is,  the  court  did  not  have  that  power.  In  cases  where 
no  deadly  weapon  has  boon  used,  and  no  serious  damage  done, 
the  punishment  in  assaults,  assaults  and  batteries,  and  aifrays, 
shall  not  exceed  a  fine  of  $50,  or  imprisonment  for  30  days. 
Code,  §9S7;  State  v.  Nash,  109  N.  C,  824,  13  S.  E.,  874; 
State,  V.  Johnson,  94  N.  C,  8G3 ;  State  v.  Albertson,  113  N.  C, 
C33,  18  S.  E.,  321.  The  Superior  Court  in  a  case  like  this 
one,  could  not  impose  a  sentence  beyond  the  limit  for  a  simple 
assault  or  affray,  where  no  deadly  weapon  had  been  used  and 
no  serious  damage  done,  when  tried  before  a  justice  of  the  ])eace. 
Stale  V.  Albertson,  supra.  The  Superior  Courts  and  courts  of 
justices  of  the  peace  have  concurrent  jurisdiction  of  such 
offenses  as  the  one  charged  in  the  bill  of  indictment.  Code, 
§  802 ;  State  v.  Bowers,  94  N.  C,  910. 

Tlie  bill  of  indictment  is  as  follows:  "State  of  Korth  Caro- 
lina, Wake  County.  In  the  Superior  Court.  September  Term, 
1901.  The  jurors  for  the  State  upon  their  oaths  present  that 
Edward  S.  Battle  and  A.  M.  Powell,  in  Wake  County,  on  the 
25th  day  of  September,  1901,  did  unlawfully  and  willfully 
mutually  assault  and  boat  each  other  in  a  public  place,  and 
inflict  serious  injury  upon  each  other,  during  the  Se])tember 
Term,  1901,  of  Wake  Superior  Court,  and  within  one  mile  of 
the  court  house  of  said  county,  and  then  and  there  did  unlaw- 
fully and  willfully  fight  and  make  an  affray,  to  the  terror  of 
the  citizens  there  assembled,  and  against  the  peace  and  dignity 
of  the  State." 

If  that  bill  was  intended  to  be  one  for  an  affray  in  which 
serious  damage  was  done,  and  over  which  the  Superior  Court 
had  exclusive  original  jurisdiction,  with  the  power  to  punish  in 
excess  of  a  fine  of  $50,  or  imjtrisonment  for  30  days,  the  inten- 
tion is  disappointed.  It  has  been  over  and  over  decided  by  this 
court  that  in  indictments  for  assaults,  assaults  and  batteries, 
and  affrays,  where  serious  damage  has  been  done,  it  is  neces- 


188 


AMERICAN  CRIMINAL  REPORTS. 


sary  to  dcscribo  the  "serious  damages"  done,  their  churactor 
and  extent,  so  that  the  court  can  see  from  the  face  of  the  indict- 
ment tlie  particuhir  dt8cri])tive  facts  charged,  that  tlu'  utleiuso 
cuntemi»hittd  by  tlie  statute  is  eliarged;  and  that  an  averment 
tliat  a  party  to  an  aii'ray,  or  a  prosecutor  injurid  in  mu 
assault,  was  seriously  injured  or  sustained  serious  danuigcs,  is 
too  general  and  indetinite.  Slalc  v.  Earnest,  98  N.  C,  74U,  4 
S.  E.,  41)5;  Slate  v.  Muore,  82  Is.  C,  059;  Slate" v.  HttsKell,  91 
X.  C,  024: ;  State  v.  Covinylon,  94  N.  C,  913,  55  Am.  Kep. 
050;  Slate  v.  Shelly,  98  N.  C,  073,  4  S.  E.,  530;  Stale  v. 
Porter,  101  X.  C,  713,  7  S.  E.,  902;  State  v.  Phillii,s,  104  X. 
C,  780,  10  S.  E.  403;  Slate  v.  Stafford,  113  N.  C,  035,  IS 
S.  E.,  250.  In  the  light  of  these  decisions,  the  words  "intlict 
serious  injury  upon  each  other,"  used  in  the  bill  of  indietniont, 
are  meaningless,  because  they  are  vague  and  indefinite.  Tlio 
nature  and  extent  of  the  injury  should  have  been  set  forth  so 
that  "the  court,  and  not  the  pleader,  must  determine  that  tlie 
facts  must  constitute  the  offense,  and  these  must  be  charged." 
State  V.  Earnest,  supra. 

But  even  if  the  bill  had  sufficiently  charged  an  affray  in 
vhich  serious  damage  had  been  done,  the  evidence  emoracod 
in  the  case  on  appeal — the  testimony  of  the  witness  Bridger^ — 
does  not  contain  one  word  concerning  the  nature  or  extent  of 
the  injuries  sustained  by  Powell,  or  that  he  was  injured  in  any 
way,  with  the  exception  that  he  was  knocked  down  by  Battle. 

We  have  decided  this  case  upon  the  matter  brought  uj)  to  us 
in  the  appeal,  and  upon  nothing  else.  If,  in  the  whole  affair, 
public  justice  has  suffered  by  reason  of  a  failure  of  fuller 
investigation,  the  responsibility  is  not  upon  us. 

The  case  is  remanded  to  the  superior  court,  to  the  end  that 
judgment  may  be  pronounced  on  the  verdict  according  to  law. 
Kemanded. 


ERVINOTON  V.  PEOPLE. 


189 


EnviNQTON  V.  Pkopi.e. 

iSl  111.  408—54  N.  E.  Rep.  981. 

Opinion  filed  October  19,  1899. 

Assault  with  Intknt  to  Muudku— Indictment:    Omission  of  the  word 

felonious. 

An  liullctment  for  assault  with  intent  to  commit  murder  is  insuf- 
ilriont  where  11  fails  to  charge  that  the  assault  was  made  felo- 
niously. 

Writ  of  error  to  the  Circuit  Co;irt  of  Champaign  County; 
lion.  Fnincis  M.  Wright,  Judge. 

Frank  Ervington,  convicted  of  assault  with  intent  to  commit 
niiu-clcr,  brings  error,     lleversed. 

F.  M.  Green  and  Son,  for  the  phiintiff  in  error. 
JJ.  ('.  Akin,  Attorney  General,  and  .1.  J.  Miller,  State's 
Attorney,  for  the  People. 

My.  Jupticc  Craig  delivered  the  opinion  of  the  Court: 
The  plaintiif  in  error,  Frank  Ervington,  was  indicted  by  the 
griiii<l  jury  of  Champaign  County  for  an  assault  with  intent  to 
murder.  The  indictment  contained  two  counts.  In  the  first  it 
was  charged  "that  Frank  Ervington,  late  of  said  county  and 
State,  on  the  tenth  day  of  May,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-eight,  at  and  in  the  county 
niul  State  aforesaid,  with  a  deadly  -weapon,  a  knife,  which  the 
KaitI  Frank  Ervington  held  in  his  hand,  did  unlawfully  and 
willfully  make  an  assault  in  and  upon  John  Scott,  in  the  peace 
of  the  people  then  and  there  being,  with  an  intent  then  and 
there  unlawfully,  willfully,  and  maliciousy  to  murder  him, 
the  said  John  Scott,  a  human  being,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the 
peace  and.  dignity  of  the  People  of  the  State  of  Illinois."  In 
the  second  count  it  was  charged  "that  Frank  Ervington,  lato 
of  the  Qounty  of  Champaign  and  state  aforesaid,  on  the  tenth 
clay  of  May,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  ninety-eight,  at  and  in  the  county  aforesaid,  with 
a  deadly  weapon,  a  knife,  which  the  said  Frank  Ervington  hehl 
in  his  hand,  did  unlawfully  and  willfully  make  an  assault  in 

For  rases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


190 


AMERICAN  CRIMINAL  REPORTS. 


und  upon  JoLn  Scott,  in  the  peace  of  the  people  then  and  thcro 
Leiiig,  witli  au  intent  then  and  liiere  unhnvfuUy,  willfully,  niul 
nialiciouHly  to  nturder  him,  the  said  John  Scott,  a  huiiuiii 
Leiii|^,  cunlniry  to  the  form  of  the  statute  in  Huch  cases  iiiiKlo 
and  provided,  and  against  the  peace  and  dignity  of  the  saitl 
Tioplc  of  the  State  of  Illinois."  On  the  trial  the  defendiiiit 
was  found  guilty  as  charged  in  the  indictment.  The  court 
overruled  a  motion  for  a  new  trial  and  in  arrest  of  jndgniciit, 
and  rtci.'tenced  the  defendant  to  the  penitentiary. 

On  the  motion  in  arrest  of  judgment,  the  plaintiif  in  error 
assigned  as  a  ground  for  the  motion  that  the  indictment,  and 
tach  and  every  cour.c  therein,  is  insufKcient  in  law,  and  I'liiU 
to  suhstantinlly  charge  the  defendant  with  the  crime  of  assnult 
with  intent  to  commit  murder,  in  words,  sutficient  in  law.  The 
ppeeitic  objection  urged  to  the  indictment  is  that  it  contains  no 
allegation  that  the  assault  upon  John  Scott  was  made  feloni- 
ously. At  an  early  day  in  this  State  the  question  presented 
nrose  in  Curtis  v.  People,  1  Scam.,  285,  and  the  court  held  that 
in  an  indictment  for  an  assault  with  intent  to  murder,  like  tlio 
indictment  here  involveil,  it  was  necessary  to  charge  that  tlie 
act  was  feloniously  done.  In  the  decision  of  the  question  it 
was  said:  "Curtis  was  indicted  for  an  assault  with  intent,  of 
his  malice  aforethought,  to  kill  and  murder,  but  the  indictment 
does  not  charge  the  act  to  have  been  done  feloniously.  *  ^'  * 
.The  only  point  necessary  to  be  decided  is  whether  the  I'lidict- 
ment  is  sufticient.  In  the  ease  of  Curtis  v.  People,  Brecse,  lT)!), 
this  very  point  was  made,  and  it  was  held  tliat  it  was  nece-'savy 
'that  the  intent  should  not  only  be  charged  to  be  in  itself 
malicious  and  unlawful,  but  that  the  felonious  design  anil 
extent  of  the  crime  intended  to  be  perpetrated  should  be  dis- 
tinctly set  forth ;  otherwise,  the  inference  would  be  that  the 
assault  might  l)e  excusable  or  justifiable.'  For  this  defect  in 
the  indictment  the  judgment  below  must  be  reversed."  Tii 
CurtiH  V.  People,  Breese,  256,  on  an  indictment  for  an  assault 
with  intent  to  murder,  it  was  held  indispensable  that  the  intent 
should  be  alleged  to  be  unlawful  and  felonious.  In  Chitty  on 
Criminal  Law  (volume  1,  §  242)  the  author  says  that  every 
indictment  for  treason  must  contain  the  word  "traitorously,'' 
every  indictment  for  burglary  "burglariously,"  and  "feloni- 
ously" must  be  introduced  in  every  indictment  for  felony.      In 


fM. 


BARNES  V.  STATE. 


191 


Pfl 


Moore  on  Crimial  Lnw  it  is  said  (section  700) :  "Unless  the 
stutiitc  has  changed  the  common  law,  the  word  'feloniously'  must 
bo  \m'd  in  all  cases  of  felony  at  common  law  or  made  felony 
by  statute,  and,  if  this  word  bo  omitted  in  a  charge  for  carry- 
iiijr  away  grain,  the  offense  will  be  trespass.  But,  in  cas<  s  ot 
iiiis(l(  nicanor,  the  use  of  the  word  'feloniously'  's  unnecessary 
ill  clmrging  the  offenae,  though  it  does  not  vitiate  the  indict- 
iiieiit."  At  common  law,  the  riile  seems  to  have  been  general, 
in  cliiir^ing  the  crime,  to  allege  the  intention  as  felonious.  1 
Bisli.  Cr.  Law,  093;  1  Whart.  Amer.  Cr.  Law,  1283-1287;  I 
Bish.  Cr.  Pioc.,  §  534. 

The  offense  for  which  the  defendant  was  indicted  was  n 
felony,  and  we  are  of  opinion  that  the  law  required  the  indict- 
nunt  to  allege  that  the  act  was  done  feloniously.  Some  States 
have  adopted  a  different  rule,  but  a\o  regard  tiio  rule  hereto- 
fore adopted  in  this  state  as  the  better  one,  and  one,  too,  sus- 
tained by  the  weight  of  authority.  Wo  are  therefore  of  opin- 
ion that  the  court  erred  in  refusing  to  arrest  the  judginent,  and 
upon  that  ground  the  judgment  will  be  reversed  and  the  cause 
remanded.    Reversed  and  remanded. 


Barnes  v.  State. 


42  Tex.  Crim.  Rep.  297—59  S.  W.  Rep.  882. 

Decided  November  28.  1900. 

Assault  with  Intent  to  Muudeu — Indictment:    Manner  of  charging 
the  offense — Date  of  offense  should  be  alleged. 

1.  ''.ne  date  of  the  offense  must  be  stated  in  the  indictment. 

2.  An  indictment  which,  in  addition  to  formal  parts  and  the  date 

and  venue  of  the  offense,  charges  that  the  defendant,  "did  then 
and  there,  unlawfully  and  of  his  malice  aforethought,  in  and 
upon  W.  C.  Scott  an  assault  i  ake.  with  Intent  to  murder  the 
said  W.  C.  Scott,  against  the  peace  and  dignity  of  the  State," 
suiliciently  charges  the  offense. 

Appeal  from  the  District  Court  of  Nacogdoches  County; 
Hon.  Tom  C.  Davis,  Judge. 

For  cases  in  previous  volumes  on  any  subject,  see  Table  ot  Topics  in 

this  volume. 


:l 


iU' 


./^ 


i 

*  ii 


i 


! 


\i 


192 


AMERICAN  CRIMINAL  REPORTS. 


Will  Ciiincs  convicted  of  assault  with  intefit  to  murdpr,  aiul 
penalty  st-t  at  five  years'  imprisonment  in  the  penitentiary, 
appeals.    Reversed  and  ease  dismissed. 

Brewer  tO  Windham,  for  the  appellant. 

Bobert  A.  John,  Assistant  Attorney  General,  for  the  State. 

Davidson,  Presiding  ri  ndge. — Omitting  formal  portions,  the 
indictment  reads  as  follows:     "Will  Barnes,  on  or  about  the 

day  of ,  A.  D,,  1900,  and  anterior  to  tlie  ])rcs- 

entation  of  this  indictment,  in  the  County  of  Nacogdoches  and 
State  of  Texas,  did  then  and  there,  unlawfully  and  of  his 
malice  aforethought,  in  and  upon  W.  C.  Scott  an  assault  make. 
with  intent  to  murder  the  said  W.  C.  Scott,  against  the  ])eacc' 
and  dignity  of  the  State."  Motion  in  arrest  of  judgment  wm 
made,  (1)  upon  the  failure  of  the  indictment  to  set  out  a  par- 
ticular date  upon  which  the  offense  was  committed;  and  (2) 
that  it  failed  to  allege  that  appellant  did  commit  the  assault. 
With  reference  to  the  last  proposition  the  indictment  is  sutB- 
cient.  However,  the  first  ground  of  the  motion  is  well  taken. 
It  is  necessary,  in  charging  an  offense,  to  set  out  some  ]iartieu- 
lar  date  when  the  offense  was  committed.  Such  is  the  unliroken 
line  of  authorities  since  the  case  of  State  v.  Eubanks,  41  Tt^xas, 
921.  The  judgment  is  reversed,  and  the  prosecution  onlored 
dismissed.  Beversed  and  dismissed. 


Black  v.  State. 

Texas— Court  of  Criminal  Appeals— 67  S.  W.  Rep.  113. 

Decided  March  5.  1902. 

Aggravated  Assault:    Inaictment — "Person  of  rol)nst  health"— "Aged 
person" — Serious  bodily  injury, 

1.  Form  of  indictment,  as  given  in  the  opinion,  held  sufficient. 

2.  The  evidence  showed  that  the  appellant  was  twenty-eight  years 

of  age,  six  feet  high,  weighing  165  pounds,  was  a  deputy  sheriff 
and  the  marshal  of  the  city  held  sufficient  proof  that  he  was 
a  robust  man. 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  ia 
this  volume. 


BLACK  V.  STATE. 


193 


3.  The  injured  person  was  fifty  seven  years  of  age,  six  feet  two  inches 

high  and  weighed  175  pounds,  held  that  he  was  not  shown  to 
be  an  aged  person  in  contemplation  of  the  statute  In  relation 
to  aggravated  assaults. 

4.  Two  blows  were  inflicted  with  a  forty-five  caliber  pistol  upon  the 

prosecutor's  head,  stunning  him  and  cau-sing  blood  to  fiow.  The 
wound  was  sewed  up  by  a  physician;  but  the  stitches  were  re- 
moved in  a  few  days  and  did  not  cause  illness  or  suspension  of 
business,  held  that  this  did  not  amount  to  a  serious  bodily  injury. 

Appeal  from  Montague  Couriiy;  Hon.  W.  \V.  Cook,  Judge. 
Tnm  Black  convicted  of  aggravated  assault,  appeals.     Re- 
versed. 

Robert  A.  John,  Assistant  Attorney  General,  for  the  Stata 

IIk.ndeksoXj  J.  Appellant  was  convicted  of  an  aggravated 
assault,  and  his  punishment  assessed  at  a  fine  of  $50. 

Tlio  charging  part  of  the  information  is  as  follows,  to  wit: 
■''On  or  about  the  11th  day  of  September,  1900,  *  *  * 
Tom  I>lnck,  who  was  then  and  there  a  person  of  robust  health 
and  strength,  late  of  said  county  and  state,  with  force  and 
arms  did  then  and  there  commit  an  aggravated  assault  upon 
C.  F.  Hutchison,  "an  aged  person,  and  did  then  and  there  inflict 
serious  l)odily  injury  upon  the  said  C.  F.  Hutchison,  and  with 
a  iloailiy  weapon,  to  wit,  a  pistol,"  etc.  The  information  is 
suffit'iciit.  The  mere  fact  that  it  couples  the  diiferent  jDhased 
of  ai!'i;ravated  assault  in  one  count  would  not  vitiate  it,  but 
such  practice  is  permissible  and  commended  in  misdemeanors. 

The  evidence  shows  appellant  was  28  years  of  age,  6  feci 
high,  weighed  1G5  poimds,  and  was  deputy  marshal  of  the  city 
which  we  deem  to  bo  sufficient  proof  that  he  was  a  person  ol 
robust  health  and  strength,  as  contemplated  by  the  aggravated 
assault  statute.  The  injured  party  was  57  years  old,  6  feet 
and  1*  inches  high,  and  weighed  175  pounds.  This  would  not 
in;.i\e  him  an  aged  person,  within  contemplation  of  the  statute. 
Wo  uuiU'rstand  the  word  "aged"  as  used  in  said  statute  means 
that  tlie  party  has  reached  that  degree  of  weakness  which  char- 
ncterizcs  declining  years.  One  might  be  quite  old,  and  yet  not 
aged,  within  the  meaning  of  the  statute.  It  is  well  knoAXTi  that 
some  men  at  60  years  of  age  are  more  robust  and  physically 
stronger  than  others  at  25  years  of  age. 

It  is  also  insisted  that  the  proof  shows  that  the  assault  com- 

Vol.  XIII— 13 


'I 


MU 


f  ! 


194 


AMERICAN  CRIMINAL  REPORTS. 


iiiitted  was  of  an  ap;gravatcd  character,  because  serious  bodilv 
injury  was  inflicted  on  the  prosecutor.  The  evidence  shows 
that  appellant  assaulted  prosecutor  with  a  45-caliber  pistol,  the 
size  not  being  otherwise  shown.  Two  blows  were  inflicted  mi 
the  head  of  prosecutor,  Avhich  stunned  him  temporarily,  cuttin," 
gashes  from  which  the  blood  flowed.  The  physician  sewed  them 
up,  and  in  a  few  days  took  out  the  stitches.  The  wound-! 
caused  Avitness  some  pain,  but  he  did  not  go  to  bed,  but  piir.sncvl 
his  usual  business.  lie  never  took  any  medicine,  and  was  not 
sick  in  any  way  from  the  licks.  Was  this  serious  bodily  injurv, 
in  contemplation  of  our  statutes  on  the  subject?  The  injuries 
inflicted  neither  endangered  appellant's  life  nor  any  of  his 
members,  nor  catised  any  sickness  or  impairment  of  health. 
Under  the  authority  of  George  v.  State,  21  Tex.  App.,  31."),  17 
S.  W.,  351 ;  McLendon  v.  State,  G6  S.  W.,  553 ;  and  Yearij  v. 
State,  66  S.  W.,  1106  (decided  at  the  present  term),  we  hold 
that  the  evidence  failed  to  show  the  infliction  of  serious  bodily 
injury. 

The    judgment    is    accordingly    reversed,    and    the    cause 
remanded. 


Manx  v.  State. 

80  Miss.  398—31  So.  Rep.  786. 

Decided  April  14,  1902. 

AssAtTiT  WITH  Intent  to  Commit  Murder — Indictment:      Simple  as- 
sault included  in  indictment. 

An  indictment  that  charges:  "That  J.  H.  Mann  on  the  12th  day  ot 
November,  1900,  in  Leal<e  County,  did  unlawfully,  with  a  pistol, 
make  an  assault,  the  said  pistol  being  a  deadly  weapon,  by  shoot- 
ing and  wounding  Sam  Morris,  with  intent  the  said  Sam  Jlorris 
feloniously,  willfully,  and  of  his  malice  aforethought,  to  kill  and 
murder,  against  the  peace,"  etc.,  is  a  good  indictment  for  both 
assault  with  intent  to  commit  murder  and  simple  assault. 

Ajipeal  from  Circuit  Court  of  Leake  County;  Hon.  J.  R. 
Enochs,  Judge. 


nation 
bcoii  nil 
If  the 
direct  ai 
iiitciulc 
liiiulcd 
kill  jiiK 
iiiipliciiti 
lo  this  is 
liy  f'(i()|)( 
217. 
Aflirm^ 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


fr 


!)'[  . 


MANN  p.  STATS. 


195 


Jamos  TI.  Mann  convicted,  grade  of  offense  uncertain, 
a])p(:ils.     Affirmed. 

I).  E.  Sullivan,  for  the  appellant. 

ir.  L.  Eastern ng.  Assistant  Attorney  General,  for  the  State. 

Tkkkal,  J.,  delivered  the  opinion  of  the  Court. 

Tlio  appellant  was  convicted  of  the  following  charge :  "That 
J.  11.  Mann  on  the  12th  day  of  November,  1900,  in  T^akc 
county,  did  imlawfully,  with  a  pistol,  make  an  assault,  the  said 
pistol  being  a  deadly  weapon,  by  shooting  and  wounding  Sam 
Morris,  with  intent  the  said  Sam  Morris  feloniously,  willfully, 
and  of  his  malice  aforethoughr,  to  kill  and  murder,  against 
the  ])eace,"  etc.,  and  was  fined  $250,  from  which  judgment  he 
appeals.  The  fine  is  common  to  a  simple  assault  and  to  a  feloni- 
ous assault,  and  it  is  essential,  therefore,  that  the  charge  should 
1)0  good  for  both  crimes.  That  the  charge,  whether  for  a  feloni- 
ous or  for  a  simple  assault,  is  awkwardly  expressed,  must  be 
adniittid,  but  we  incline  to  the  view  that  it  is  good  for  either 
crime.  We  think  the  strong  implication  is  that  Mann  had  a 
pistol  loaded  and  charged  with  deadly  missiles,  and  so,  being 
a  deadly  weapon,  he  discharged  said  pistol  at  Morris,  and 
therein'  wounded  Morris,  with  the  intent  of  said  Mann  to  kill 
and  murder  Morris.  It  does  not  appear  that  appellant  suf- 
fered any  harm  from  a  failure  to  charge  a  more  precise  desig- 
nation of  the  offense;  nor  do  we  understand  how  he  could  have 
1)0011  mistakeu  as  to  the  crime  intended  to  be  laid  against  him. 
If  tlu^  charge  be  not  precisely  direct  in  its  character,  it  is  so 
direct  and  precise  that  its  meaning  cannot  be  mistaken.  It 
iiitomlcd  to  charge  Mann  with  shooting  at  Morris  with  a  pistol 
loaded  and  charged  with  deadly  missiles,  with  the  intent  to 
kill  Mild  murder  Morris,  and  that  is  the  plain  and  necessary 
implication  of  the  words  used.  A  form  of  indictment  similar 
to  tins  is  found  in  Whart.  "Prec.  Indict.,  242,  which  is  approved 
In-  Cooper,  C.  J.,  in  Wood  v.  State,  64  Miss.,  773,  2  South., 
217. 

AHirmed. 


ill 


'■fU 


•Hi 

I'f 

[if  : 

■J? 


i, 


it- 


.1    ! 


196  AMERICAN  CRIMINAL  REPORTS. 


HOOAX   ET  AL.    V.    StATE, 

42  Fla.  5G2— 28   So.  Rep.  763. 

Decided  June  25,  1900. 

Assault  with  Intknt  to  Mubdeb — Insufficiency  of  the  Information 
— Intent  the  gist  of  the  crime — Necessity  of  pleadng  the  intent 
unth  certainty;  stating  the  intent,  by  way  of  deduction,  imuf. 
ficient — Conviction  reversed  on  motion  in  arrest  of  judgment. 

1.  A  motion  in  arrest  of  judgment  should  be  granted  when  the  ver- 

dict finds  an  accused  person  guilty  of  an  offense  not  charged,  or 
included  In  the  charge  made,  in  the  indictment. 

2.  The  gist  of  the  offense  denounced  by  section  2403,  Rev.  St.,  is  the 

intent  with  which  the  assr.ult  is  committed,  and  an  Information 
drawn  under  that  section  must  charge  such  intent  with  that 
certainty  which  is  required  as  to  other  material  allegations.  It 
must  not  be  left  to  uncertain  inference.  Nor  is  a  mere  state- 
ment of  such  intent  in  the  conclusion  of  the  information,  by  way 
of  legal  deduction  or  Inference  from  facts  previously  alleged,  a 
sufficient  allegation  as  to  the  intent. 

3.  An  information  alleging  that  L.  H.,  A.  .H.,  and  W.  H.,  In  Duval 

County,  Fla.,  on  December  20,  1899,  "in  and  upon  one  J.  M.  W„ 
with  certain  deadly  weapons,  to  wit,  pistols,  which  they,  the 
said  L,  H.,  A.  H.,  and  W.  H.,  then  and  there  held  In  their  hands, 
an  assault  did  make,  and  him,  the  said  J.  M.  W.,  did  then  and 
there  beat,  bruise,  wound,  and  111  treat,  they,  the  said  L.  H.,  A. 
H.,  and  W.  H.,  then  and  there  having  a  premeditated  design  and 
Intent  then  and  there  unlawfully  to  kill  and  murder  him,  the 
said  .1.  M.  VV.,  whereby,  by  force  of  the  statute  in  such  cases 
made  and  provided,  the  said  L.  H.,  A.  H.,  and  W.  H.  are  deemed 
to  have  committed  the  crime  of  assault  with  Intent  to  murder, 
contrary,"  etc.,  does  not  charge  an  offense  under  section  2403, 
Rev.  St. 
(Syllabus  by  the  Court.) 

Error  to  Criminal  Court  of  Record,  Duval  County;  lion. 
John  L.  Doggett,  Judge. 

Archibald  Hogan  and  William  Ilogan  convicted  of  an  assault 
with  intent  to  murder  bring  error.     lieversed. 

CJark  £  Gibbons  and  George  U.  Walker,  for  the  plaintiffs  in 
error. 

William  B.  Lamar,  Attorney  General,  for  the  State. 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


HOGAN  ET  AL.  v.  STATE. 


197 


Cauteb,  J.  On  December  22,  1899,  an  information  was 
filed  in  the  Criminal  Court  of  record  of  Duval  county  charging 
*'thi(t  Louis  llogan,  Archibald  Ilogan,  and  William  Hogar^  late 
of  the  County  of  Duval  and  State  of  Florida,  on  the  20th  day 
of  December  in  the  year  of  our  Lord  1899,  in  the  County  and 
State  aforesaid,  in  and  upon  one  James  M.  Williams,  with 
c(M'tiiin  deadly  weapons,  to  wit,  pistols,  which  they,  the  said 
Louis  Ilogan,  Archibald  Ilogan,  and  William  Ilogan,  then  and 
there  held  in  their  hands,  an  assault  did  make,  and  him,  the 
said  James  M.  Williams,  did  then  and  there  beat,  bruise, 
wound,  and  ill  treat,  they,  the  said  Louis  Hogan,  Archibald 
llooiin,  and  William  Ilogan,  then  and  there  having  a  premedi- 
tated design  and  intent  then  and  there  unlawfully  to  kill  and 
iiiiii'der  him,  the  said  James  M.  Williams,  wherefore,  by  virtue 
of  the  statute  in  such  case  made  and  provided,  the  said  Louis 
Ilogan,  Ai'chibald  Hogan,  and  William  Ilogan  are  deemed  to 
have  committed  the  crime  of  assault  with  intent  to  murder,  con- 
trary," etc. 

On  January  9,  1900,  upon  motion  of  the  State  the  court 
granted  a  severance  as  to  Louis  Hogan,  and,  the  other  defend- 
ants having  been  arraigned  and  pleaded  not  guilty,  a  trial  was- 
had  as  to  them,  resulting  in  a  verdict  as  follows:  **We,  the 
jury,  find  the  defendants  guilty  of  assault  with  intent  to  murder 
in  the  second  degree."  The  defendants  thereupon  moved  in 
arrest  of  judgment  upon  the  following  grounds,  among  others:. 

(1)  The  information  is  not  sufficient  to  base  a  sentence  on 
the  verdict  rendered. 

(2)  Xo  sentence  or  judgment  can  legally  be  imposed  on  the 
verdict  of  the  jury. 

This  motion  was  overruled,  and  the  ruling  is  assigned  as 
error.  The  court  sentenced  the  defendants  to  imprisonment  in 
the  State's  prison  at  hard  labor, — Archibald  Ilogan  for  the 
period  of  six  years,  and  William  Hogan  for  the  period  of  four 
yoars.  From  these  sentences  the  defendants  sued  out  this  writ 
of  error.  Various  other  rulings  in  the  case  are  assigned  as 
cr'-or,  but,  in  view  of  our  conclusions  as  to  the  ruling  upon  the 
motion  in  arrest  of  judgment,  it  is  neither  necessary  or  proper 
for  urs  to  express  an  opinion  as  to  thera. 

It  is  quite  evident  that  the  trial  was  had  upon  the  theory  that 
the  information  charged  an  offense  under  section  2403,  Rev. 


I:* 


i    ,    )  .    ,  , 


m 


198 


AMERICAN  CRIMINAL  REPORTS. 


^H 


St.,  which  rends  as  follows:  "Whoever  commits  an  assault  on 
aiiuthd-,  with  intent  to  commit  any  felony  punishahle  with 
death  or  imprisonment  for  life,  shall  be  punished  by  inij)ris(iu- 
mcnt  in  the  state  prison  not  exceeding  twenty  years.  An 
assault  with  intent  to  connnit  any  other  felony  shall  be  pun- 
ished to  an  extent  not  exceeding  one  half  the  punishment  wliicli 
could  have  lif^ri  r  fli?ted  had  the  crime  been  committed."  Phiin- 
tiiFs  in  ei-ov  '  .;  iiat  under  our  statutory  definition  of  unir- 
(;cr  in  the  set'  .  l'o"'e,  it  is  impcssible  that  one  can  connnit 
an  assault  ivilh  intent  to  commit  murder  in  that  degree.  We  du 
riot  doom  it  necessary  lo  f>ntcr  upon  a  consideration  of  that 
question,  which  ajjiir.irs  lo  bo  a  difficult  one,  but  shall  assume 
for  the  purposes  of  this  case  that  such  an  offense  can  bo  com- 
mitted. The  other  question  argued  is  that  the  information  docs 
not  charge  an  assault  with  int(  nt  to  commit  the  felony  of  mur- 
der in  any  degree.  We  think  this  contention  is  sound,- and  that 
the  verdict  rcndcrr  1  is  for  an  offense  not  charged,  or  includcl 
in  the  charge  made,  in  the  information.  It  may  be  that  the 
information  sufficiently  charges  an  assault,  or  an  assault  and 
battery,  although  it  fails  to  allege  that  the  assaiilt  was  com- 
mitted "unlawfully"  or  "without  authority  of  law."  But  wc 
find  no  allegation  that  the  assault  was  committed  "with  inlcnt 
to  commit"  any  felony,  which  is  the  offense  denounced  by  tlio 
statute  quoted.  Construing  it  in  \ViUiams  v.  State,  41  Fla., 
,  26  South,  184,  we  said:  "This  section  designs  to  pun- 
ish assaults  committed  with  intent  to  commit  any  felony.  The 
intent  is  the  gist  of  the  offense,  and  no  one  can  be  pnuislud 
under  the  statute  for  an  assault  unless  it  be  accompanied  widi 
the  requisite  intent."  The  intent,  being  the  gist  of  the  offense, 
must  be  distinctly  alleged  with  that  certainty  which  is  required 
as  to  other  material  allegations.  It  must  not  be  left  to  uncer- 
tain inference.  Nor  is  a  mere  statement  of  such  intent,  in  the 
conclusion  of  the  information,  by  way  of  legal  deduction  or 
inference  from  the  facts  previously  alleged,  a  sufficient  allega- 
tion as  to  the  intent.  Drake  v.  State,  19  Ohio  St.,  211 ;  CooJa  v. 
Same,  25  Fla.,  698,  6  South.,  451 ;  Moulie  v.  Same, 
87  Fla.,  321,  20  South.,  554.  This  information  chargos 
nn  assault  and  a  battery,  and  then  proceeds:  "They,  the  said 
Louis  ITogan,  Archibald  Ilogan,  and  William  Hogan,  then  ami 
there"  [i.  c.  on  December  20,  1899,  in  Duval  county]  "having;' 


RUIS  ET  AL.  V.  STATE. 


199 


a  premeditated  design  and  intent  then  and  there"  [i.  e.  on 
Dt'ci'uibcr  20,  1899,  in  Duval  county]  "unlawfully  to  kill  and 
miu'dtr  him,  the  said  James  M.  Williams."  It  may  be  true 
that,  on  tlie  day  and  in  the  county  named,  defendants  assaulted 
Williams,  and  that  on  the  same  day  and  in  the  same  county  tho 
defendants  had  a  premeditated  design  and  intent  to  kill  Wil- 
liams on  that  day  and  in  that  county,  and  yet  the  assault  may 
not  have  ken  committed  in  pursuance  of  the  design  and  intent 
alleiied.  If  the  assault  preceded  the  formation  of  the  premedi- 
tarcd  design,  or  if  the  assault  was  not  accompanied  by  the 
design  or  intent  to  slay,  no  offense  would  be  committed,  under 
this  statute.  The  indictment  ought  to  allege  specifically  that 
ll:e  defendants  committed  the  assault  with  intent  to  commit  the 
fcl<iny  alleged,  but  at  any  rate  it  must  clearly  and  certainly 
appear  from  the  allegations  of  tlie  indictment  that  such  was  the 
fact,  in  order  to  charge  a  crime  under  this  statute.  Bartlett  v. 
Sfdte,  21  Tex.  App.,  500,  2  S.  W.,  829;  State  v.  Child,  42 
Kan.,  Oil,  22  Pac,  721.  The  jury  having  by  their  verdict 
found  defendants  guilty  of  a;i  offense  not  charged,  we  think  the 
court  was  in  error  when  it  refused  to  arrest  the  judgment. 

The  judgment  is  reversed  and  the  cause  remanded  for  further 
proceedings  not  inconsistent  with  this  opinion. 


Euis  ET  AL.  V.  State. 

43  Fla.  186—30  So.  Rep.  802. 

Decided  March  19.  1901. 

Assault  with  Intent  to  Mijbder — Insufficiency  of  Indictment:  In- 
tent the  gist  of  the  crime — Intent  not  sufficiently  charged — Con- 
viction reversed  on  motion  to  quash  indictment. 

The  purpose  of  section  2403,  Rev.  St.,  is  to  punish  assaults  made 
with  intent  to  commit  a  substantive  crime  of  felony,  and  this 
intent  is  the  gist  of  the  offense  of  assaulting  another  with  de- 
sign to  commit  the  felony,  and  the  Indictment  or  information 
should  charge  the  Intent  with  which  the  assault  was  made  with 
that  certainty  required  as  to  other  material  allegations.    A  mere 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


( (- 


200 


AMERICAN  CRIMINAL  REPORTS. 


11 : 


t'j:i 


statement  of  such  intent  in  the  conclusion  of  the  indictment  or 
information,  by  way  of  legal  deduction  or  inference  from  facts 
previously  alleged,  will  not  be  sufficient. 
(Syllabus  by  the  Court.) 

Error  to  Circuit  Court,  Baker  County;  Hon.  Eliydon  M. 
Call,  Judge. 

Wallace  Ruis  and  John  Davis  convicted  of  assault  with  intent 
to  murder,  bring  error.     Keversed. 

B.  H.  Palmer,  for  the  plaintiff  in  error. 

Williaiu  B.  Lamar,  Attorney  General,  for  the  State. 

Xabry,  J.  Plaintiffs  in  error  were  convicted  and  sentenced 
in  the  Circuit  Court  for  Baker  county  at  the  fall  term,  A.  1)., 
1900.  The  indictment  returned  against  them,  and  upon  wIul'Ii 
they  were  tried,  charged  in  its  body  that  they  "on  the  13th  day 
of  July,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-eight,  m  the  county  and  State  aforesaid,  in  and  upnu 
one  O.  B.  Sweat,  with  a  certain  deadly  weapon,  to  wit,  a  pistol 
and  a  gun,  which  they,  the  said  Wallace  Ruis  and  John  Davis, 
then  and  there  held  in  their  hands,  an  assault  did  make,  thev, 
the  said  \yallace  Ruis  and  John  Davis  having  then  and  tliere  a 
premeditated  design  to  effect  the  death  of  the  said  O.  B.  Sweat, 
contrary  to  the  statute." 

A  motion  was  made  to  quash  the  indictment  on  several 
grounds,  questioning  its  sufficiency ;  but  the  court  overruled  th.' 
motion,  and  defendants. excepted  to  the  ruling,  and  now  assign 
it  as  error.    We  think  the  court  erred  in  this  ruling. 

This  indictment  cannot  be  sustained  under  our  decision  in 
the  c.ise  of  Uogan  v.  State,  42  Fla.,  562,  28  South.,  703.  Our 
statute  provides  that  "whoever  commits  an  assault  on  another, 
with  intent  to  commit  any  felony  punishable  with  death  or 
imjirisonment  for  life,  shall  be  punished  by  imprisonment  in 
the  State  prison  not  exceeding  twenty  years.  An  assault  with 
intent  to  commit  any  other  felony  shall  be  punished  to  an  extent 
not  exceeding  one-half  the  punishment  which  could  have  been 
inflicted  had  the  crime  been  committed."    Rev.  St.,  §  2403. 

The  evident  purpose  of  this  statute  is  to  punish  assaults  made 
Avith  intent  to  commit  a  substantive  crime  of  felony,  and  this 
intent  is  the  gist  of  the  offense  in  assaulting  another  with  '.he 


ANDERSON  r.  STATE. 


201 


dcsip:!!  to  commit  a  felony.  Williams  v.  State,  41  Fla.,  295,  20 
South.,  184,  and  cases  cited. 

We  held  in  the  Hogan  Case,  supra,  that  the  information  or 
iiidictinent  must  charge  the  intent  with  which  the  assault  was 
iiiiule  with  that  certainty  required  as  to  other  material  allega- 
tions, and  that  a  mere  statement  of  such  intent  in  the  conclusion 
of  the  information  or  indictment,  by  way  of  legal  deduction  or 
inference  from  facts  previously  alleged,  was  not  suthciont. 

In  this  respect  the  indictment  now  before  us  is  mure  defective 
tlian  the  information  in  the  Ilogan  Case.  It  is  alleged  that 
dofeiidants  made  an  assault  upon  one  O.  B.  Sweat  on  a  certain 
day  with  a  pistol  and  gun,  but  it  is  not  stated  the  assault  was 
iiiaih'  with  the  intent  to  commit  any  felony.  It  is  stated  that 
tlio  (hfendants  did  then  and  there — that  is,  on  the  day  and  in 
the  c'Dunty  mentioned — have  a  premeditated  desig-n  to  effect 
the  d(ath  of  Sweat,  but  this  is  in  the  conclusion,  without  any 
j^ropcr  connection  in  point  of  time  with  the  making  of  the 
Hssault.  Again,  the  assault  must  be  made  with  the  intent  to 
commit  a  felony,  and  the  indictment  states  simply  as  a  conclu- 
sion that  defendants  had  a  premeditated  design  to  effect  death. 

Tiu'  judgment  of  the  court  below  will  bo  reversed,  with  direc- 
tions to  sustain  the  motion  to  quash  the  indictment,  and  for 
fucli  further  proceedings  as  may  be  consistent  with  law.  So 
ordered. 


Anderson  v.  State. 


i<\ 


44  Fla.  413—33  So.  Rep.  394. 

Decided  September  16.  1902. 

AssAtTi.T  WITH   Intent  to  Murder — Information   Sitfficient. 

[.  An  information  charging  that  on  a  given  date  the  accused,  with 
a  premeditated  design  and  intent  unlawfully  to  kill  and  murder 
p  tertain  named  person,  in  and  upon  him  an  assault  did  make 
with  a  certain  deadly  weapon,  sufficiently  connects  in  point  of 
tiir.e  the  felonious  intent  with  the  assault,  and  is  not  defective  in 
failing  to  allege  that  the  assault  was  made  with  Intent  to  murder. 

(Syllabus  by  the  Court.) 


.  For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


'\i 


.f 


202 


AMERICAN  CRIMINAL  REF0RT3. 


Error  to  Criminal  Court  of  Record,  Duval  County;  Hun. 
John  L.  Doggc'tt,  Judge. 

A.  II.  Andersdn  convicted  of  assault  with  intent  to  nuirdor. 
brings  error.    Atiirmed. 

Walker  tO  Slunjlor  and  C.  B.  Peeler,  for  the  plaintilf  in  error. 
William  B.  Lamar,  Attorney  General,  for  the  State. 

Mahky,  .1.  An  information  for  an  assault  with  intent  to 
murder  v.as  filed  in  the  Criminal  Court  of  Kecord  for  Duval 
county  against  ])laintitf  in  error.  The  charging  part  ol'  the 
information  is  that  the  defendant  "on  the  21)th  day  of  -Inly 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  niiicty- 
nino,  in  the  county  and  State  aforesaid,  of  his  malice  at'ore- 
thouglit,  and  with  a  premeditated  design  and  intent  unlawfully 
to  kill  and  nuirdtr  one  George  L.  Miller,  in  and  upon  him,  the 
said  George  L.  JMiller,  an  assault  did  make  with  a  certain  (k:ully 
weapon,  to  wit,  a  pistol,  which  he,  the  said  A.  II.  Anderson, 
then  and  there  held  in  his  hands,  and  him,  the  said  George  L. 
Miller,  did  then  and  there,  beat,  bruise,  wound,  and  ill-treat, 
wherefore,  by  virtue  of  the  statute  in  such  cases  made  and 
provided,  the  said  A.  II.  Anderson  is  deemed  to  have  conunitted 
the  crime  of  assault  with  intent  to  murder,  contrary  to  the 
form  of  the  statute,"  &c. 

After  arraignment  the  defendant  was  convicted  of  the  eriuio 
charged,  and  moved  in  arrest  of  judgment  on  the  grounds  ;iiat 
the  information  was  insufficient  in  form  and  substance  to  ])asi: 
any  judgment  on,  and  failed  to  charge  an  assault  with  intent  to 
murder,  and  did  not  charge  any  of  the  offenses  covered  by  sec 

tion ,  Rev.  St.,  or  any  crime  under  the  laws  of  the  State. 

The  motion  was  overruled  by  the  court,  and  the  defendant  sen- 
tenced to  the  State  penitentiary. 

The  error  assigned  and  insisted  on  is  the  ruling  of  the  court 
denying  the  motion  in  arrest  of  judgment. 

It  is  contended  by  counsel  for  plaintiff  in  error  that  the 
information  fails  to  allege  that  the  assault  was  made  with 
intent  to  murder,  as  required  by  the  rulings  in  the  cases  of 
Hogan  v.  State,  42  Fla.,  562,  28  South.,  763,  and  Ruis  v.  State, 
43  Fla.,  186,  30  South.,  803.  The  information  in  the- present 
case,  as  in  the  cases  cited,  is  framed  under  section  2403,  Rev. 
St.,  and  according  to  our  ruling  the  purpose  of  the  section  is 
to  punish  assaults  made  with  intent  to  commit  a  substantive 


ANDERSON  f.  STATE. 


203 


crime  of  felony,  and  that  thia  intent  is  the  gist  of  the  oflfenso  in 
tlip  iitteniptcd  felony,  and  ahonld  be  alleged  with  the  same  cer- 
tainty required  as  to  otlur  material  allegations.  In  the  Ilogan 
Case  the  information  alleged  that  the  defendants  on  a  given 
date,  and  in  a  designated  locality,  committed  an  assault  with 
a  clciidly  weapon  upon  a  certain  i)erson,  and  then  and  there  did 
beat,  bruise,  wound,  and  ill-treat  him;  the  said  defendants  then 
and  there  having  a  premeditated  design  and  intent  then  and 
there  unlawfully  to  kill  and  murder.  It  was  held  that  the  intent 
iini!?t  ntit  Ikj  left  to  uncertain  inference,  and  that  a  mere  state- 
ment of  such  intent  in  the  conclusion  of  the  information,  by 
way  of  legal  deductions  from  facta  previously  alleged,  was  not 
sutficient.  The  niling  in  the  Rids  Case  is  to  the  same  effect. 
We  are  of  opinion  that  the  information  in  the  case  now  before 
lis  (lifTers  from  those  in  the  eases  cited,  and  that  the  intent 
with  which  the  assault  was  made  is  stated  with  sufficient  definite- 
ncss  an<l  certainty.  It  is  distinctly  alleged  that  on  a  certain 
date  the  defendant,  with  a  premeditated  design  and  intent 
unlawfully  to  kill  and  murder  one  ^liller,  in  and  upon  him  an 
assaidt  did  make  with  a  certain  deadly  weapon,  and  him,  said 
Miller,  did  then  and  there  Iwat,  bruise,  wound,  and  ill-treat. 
This  sufficiently  connects  in  point  of  time  the  felonious  intent 
with  the  assault,  and  the  information  is  not  objectionable  on 
the  ground  urged.  We  are  of  opinion,  therefore,  that  the  court 
did  not  err  in  overruling  the  motion  in  arrest  of  judgment,  and 
the  judgment  must  be  affirmed. 
Order  to  be  entered  affirming  the  judgment. 

Noii;  (by  J,  F.  G.). — Where  a  statute  defining  assault  with  intent 
to  commit  a  felony,  does  not  declare  a  battery  to  be  an  essential  ele- 
ment of  the  crime,  the  indictment  need  not  allege  a  battery. — This  wag 
held  In  Knight  v.  State,  (Fla.)  32  So.  Rep.  110.  The  Indictment  In 
that  case,  the  charging  part  which,  appears  In  the  following  quotation, 
was  held  to  be  a  sufficient  charge  of  assault  with  Intent  to  commit 
murder.    In  the  course  of  the  opinion,  the  Court  said: 

"The  third  and  fifth  assignments  will  be  considered  together.  The 
objections  to  the  Indictment  urged  under  these  assignments  of  error 
are  that  It  does  not  specifically  allege  that  the  pistol  was  discharged 
upon  the  person  of  Ben  Brown,  but  only  that  It  was  discharged  at  and 
upon  Brown;  that  It  does  not  allege  that  a  wound  was  Inflicted  upon 
Brown,  nor  name  any  part  of  the  body  or  limb  at  or  upon  which  the 
pistol  was  discharged;  that  It  falls  to  allege  that  the  intent  or  pre- 
meditated design  existed  at  the  time  of  the  commission  of  the  offense; 
that  it  does  not  charge  the  offense  with  such  certainty  that  a  con- 


■»" 


f,  f^'f 


1  .'i;  V 


lilt* 


I 


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1    .ii; 


it 


f- 


I 


Hi 


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t, 


204 


AMERICAN  CRIMINAL  REPORTS. 


vlction  or  acquittal  thereunder  could  be  pleaded  In  bar  of  another 
indi.'tmcnt  for  the  same  offense;  that  it  does  not  set  forth  the  manner 
of  the  commission  of  the  offense,  the  intent  with  which  the  assault 
was  committed  at  the  time  and  place  of  committing  the  samo,  ana 
does  not  charge  an  attempt  to  commit  murder  in  any  degree. 

"The  statute  under  which  this  indictment  was  found  is  as  follows: 
'Whoever  commits  an  assault  on  another  with  intent  to  commit  any 
felony  punishable  with  death  or  Imprisonment  for  life  shuU  be  pun- 
ished by  imprisonment  in  the  State  prison  not  exceeding  20  years. 
An  a^ssnult  with  Intent  to  commit  any  other  felony  shall  be  punished,' 
etc.     Section  2103,  Rev.  St. 

"It  will  be  perceived  that  neither  a  battery  nor  a  wounding  Is  an 
cs.senllal  ingredient  of  the  offenRe  denounced  by  this  statute.  The 
cffense  Is  complete  where  ona  person  commits  an  assault  on  another 
with  intent  to  commit  a  felony  {Peterson  v.  ^tate,  41  Fla.  2S'),  2G 
South.  709),  and  an  assault  may  be  committed  without  either  a  bat- 
tery or  wounding.  Neither  a  battery,  striking,  nor  wounding  bfing  an 
essential  element  of  the  offense,  it  is  not  necessary  to  allege  either, 
and  of  course,  it  being  unnecessary  to  allege  them  at  all,  it  is  unnoces- 
sary  to  allrgc  the  particular  part  of  the  body  or  limb  upon  which  they 
were  inllicted.    Bish.  Dir.  &  Forms,  §  G58,  note  6. 

"All  the  other  objections  urged  to  this  indictment  are  fully  covered 
by  its  language.  It  alleges  that  defendant  made  an  assault  In  and 
upon  Brown  with  a  deadly  weapon, — a  loaded  pistol;  that  defendant 
shct  oft  and  discharged  the  pistol  at  and  upon  Brown,  and  that  the 
EFsauIt  was  so  made  and  the  pistol  was  so  discharged  and  shot  off 
unlawfully,  of  defendant's  malice  aforethought,  and  from  his  premedi- 
tated design  to  effect  the  death  of  Brown,  with  intent  unlawfully,  of 
defendant's  malice  aforethought,  and  from  his  premeditated  design 
to  effect  Brown's  death,  to  kill  and  murder  Brown.  Its  precise  lan- 
guage la  that  defendant,  in  Alachua  County,  on  a  particular  date 
named,  in  and  upon  one  Ben  Brown,  with  a  deadly  weapon,  to  wit,  a 
certain  pistol,  which  was  then  and  there  loaded  with  gunpowder  and 
leaden  bullets,  and  by  him,  the  said  William  J.  Knight,  then  and 
there  had  and  held  in  his  hand,  unlawfully,  feloniously,  of  his  malice 
aforethought,  and  from  a  premeditated  design  to  effect  the  death  of 
the  said  Ben  Brown,  did  make  an  assault,  and  he,  the  said  William 
J.  Knight,  did  then  and  there  unlawfully,  feloniously,  of  his  malice 
aforethought,  and  from  a  premeditated  design  to  effect  the  death  of 
the  said  Ben  Brown,  shoot  off  and  discharge  the  said  pistol,  so  loaded 
with  gunpowder  and  leader  oullets  aforesaid,  at  and  upon  the  said 
Ben  Brown,  with  intent  then  and  there  unlawfully,  feloniously,  of 
his  malice  aforethought,  and  from  a  premeditated  design  to  effect 
the  death  of  the  said  Ben  Brown,  to  kill  and  murder  the  said  Ben 
Brown,  contrary  to  the  form  of  the  statute,  etc. 

"These  allegations  are  sufllclent  to  charge  the  offense  of  an  as- 
sault with  intent  to  commit  the  felony  of  murder  in  the  first  degree,  as 
against  every  objection  presented  under  the  assignments  of  error  now 
being  considered,  and  such  assignments  must,  therefore,  be  overruled." 


GRAY  BT  AL.  v  STATE.  205 


Gray  et  al.  v.  State.  j 

44  Kla.  436—33  So.  Rep.  395. 

Decided  September  IG.  1902. 

AssAii.T  WITH  Intent  to  Murder— Information:    Sufficient  averment 
as  to  intent;  also  aa  to  weapon  used. 

1.  An  information  charging  substantially  In  the  form  set  out  in  the 

opinion  and  headnote  in  the  case  of  Brinkley  v.  State,  decided 
here  at  the  present  term,  33  South.  294,  held  to  be  a  sufficient 
charge  of  llie  crime  of  assault  with  intent  to  murder. 

2.  Under  the  provisions  of  section  2403,  Rev.  St.,  it  Is  not  necessary 

to  the  crime  of  assault  with  intent  to  murder  that  the  assuult 
shall  have  been  made  with  a  deadly  weapon.  The  gist  of  the 
offense,  under  this  statute,  consists  in  the  intent  with  which  the 
assault  is  made;  and.  If  this  intent  is  properly  alleged  and 
proved,  the  Instrument  or  appliance  used  Is  Immaterial,  except  as 
it  may  serve  as  evidence  to  establish  such  Intent. 
(Syllabus  by  the  Court.) 

Error  to  Criminal  Court  of  Record,  Dir  ,  'bounty;  Hon. 
John  L.  Doggett,  Judge. 

Joe  Gray  and  Denny  Hopkins  convicted  of  assault  with 
intent  to  murder,  bring  error.     Affirmed. 

Walker  <£•  Shaylor  and  C.  B.  Peeler,  for  the  plaintiffs  in 
error. 
William  B.  Lamar,  Attorney  General,  for  the  State. 

Taylor,  C.  J.  The  plaintiffs  in  error  Avere  tried,  convicted, 
and  sentenced  in  April,  1902,  in  the  Oiminal  Court  of  Record 
for  Dtival  County,  for  the  crime  of  assault  with  intent  to  com- 
mit murder,  and  bring  their  case  here  by  writ  of  error. 

After  verdict  the  defendants  moved  in  arrest  of  judgment  on 
the  following  grounds: 

(1)  Said  information  is  insufficient  in  law,  in  form,  sub- 
stance, and  effect,  to  base  a  lawful  judgment  and  sentence  upon. 

(2)  Said  information  does  not  sufficiently  charge  the  sup- 
posed offence  of  assault  with  intent  to  murder. 

(3)  Said  information  alleges  that  said  assault  and  assault 
and  battery  was  inflicted  upon  said  Hitchcock  with  a  piece,  or 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


ii 


m 


» 


I    ' 


20G 


AMERICAN  CRIMINAL  REPORTS. 


I     1 


large  piece,  of  scantling,  which  is  alleged  to  be  a  deadly  wca])on. 
yet,  as  matter  of  law,  such  scantling  is  not  a  deadly  weapnn, 
nor  is  it,  as  a  matter  of  law,  a  deadly  weapon,  nor  is  there  in 
said  information  any  allegation  of  the  manner  or  method  of  uso 
of  said  scantling  which — it  not  being  per  se  a  deadly  weajxni-  • 
would  make  the  same,  in  the  circumstances,  a  deadly  weapon, 
and,  therefore,  said  information  fails  to  charge  an  assault  with 
a  deadly  weapon,  as  required  by  law  to  constitute  assault  witli 
intent  to  commit  murder. 

(4)  Because  no  lawful  judgment  can  be  rendered  upon  said 
information. 

The  denial  of  this  motion  constitutes  the  basis  for  the  twi 
assignments  of  error  made  here,  which  assignments  are  as  f pil- 
lows : 

(1)  That  the  information  is  insufficient,  as  matter  of  l;i\v, 
in  form  and  in  substance,  as  the  basis  for  a  valid  judgment. 

(2)  That  the  court  erred  in  overruling  the  motion  of  said 
plaintiffs  in  error,  made  in  the  court  below,  in  arrest  of  judg- 
ment, on  the  grounds  therein  stated. 

The  charging  part  of  the  information  assailed  by  this  motion 
is  as  follows:  "That  Joe  Gray  and  Denny  Hopkins,  of  tlio 
county  of  Duval  and  State  of  Florida,  on  the  4th  day  of  ^lareh 
in  the  year  of  our  Lord  one  thousand  nine  hundred  and  twd,  in 
the  county  and  State  aforesaid,  of  their  malice  aforctlu»iif>lit, 
jtnd  with  a  premeditated  design  and  intent  then  and  tlioir 
unlawfully  to  kill  and  murder  one  S.  D.  Ilitchcoi'k,  in  and 
upon  him,  the  said  S.  D.  Hitchcock,  with  a  certain  deadly 
weapon,  to  wit,  a  large  piece  of  scantling,  which  they,  the  said 
Joe  Gray  and  Denny  Hopkins,  then  and  there  held  in  tlioir 
hands,  unlawfully  an  assault  did  make,  and  him,  the  said  S.  1). 
Hitchcock,  did  then  and  there  beat,  bruise,  wound,  and  ill-treat, 
wherefore,  by  virtue  of  the  statute  in  such  cases  made  and  pro- 
vided, the  said  Joe  Gray  and  Denny  Hopkins  are  deemed  to 
have  committed  the  crime  of  assault  with  intent  to  murder, 
contrary  to  the  form  of  the  statute,"  &c. 

The  contention  made  here  is  that  the  information  fails  to 
allege  sufficiently  that  the  assault  was  made  with  a  deadly 
Aveapon ;  that,  the  large  piece  of  scantling  alleged  to  have  hcon 
the  instrument  with  which  the  assault  was  made  not  being  jjcr 
se  a  deadly  weapon,  the  information,  to  properly  show  that  it 


GRAY  ET  AL.  v  STATE. 


207 


\i'as  a  deadly  weapon,  should  have  alleged  the  manner  of  its 
use  in  the  assault  made  therewith ;  and  that  therefore  the  infor- 
mation is  insufficient.  These  contentions  are  not  well  taken. 
Xeither  can  the  assignments  of  error  he  sustained. 

The  information  is  predicated  upon  section  2403  of  the 
Eevispd  Statutes,  that  reads  as  follows :  "Whoever  commits  an 
assault  on  another,  with  intent  to  commit  any  felony  punish- 
able with  death  or  imjirisonnicnt  for  life,  shall  be  punished  by 
imprisonment  in  the  State  prison  not  exceeding  twenty  years. 
An  assault  with  intent  to  commit  any  other  felony  shall  be  pun- 
ished to  an  extent  not  exceeding  one-half  the  punishment  which 
could  have  been  inflicted  had  the  crime  been  committed."  It 
will  be  observed  that  under  this  statute  it  is  not  necessary  that 
an  assault  with  intent  to  commit  murder  shall  be  made  with 
a  (1(  adly  weapon.  The  gist  of  the  offense  consists  in  the  intent 
with  which  the  assault  is  made,  and,  if  this  intent  is  properly 
alloi>od  and  proved,  the  instrument  or  appliance  used  is  imma- 
terial, except  as  it  may  serve  as  evidence  to  establish  such  intent. 

The  information  here,  we  think,  avoids  the  infirmity  pointed 
out  in  the  information  and  indictment,  respectively,  in  the  cases 
of  Hogan  v.  State,  42  Fla.,  502,  28  So.  R-p.,  763,  and  Ruis  v. 
Stair,  43  Fla.,  186,  30  So.  Rep.,  802,  in  which  cases  it  was 
held  that  the  information  in  the  one  and  the  indictment  in  the 
othrr  failed  to  sufiiciently  allege  that  the  assaults  charged 
therein  were  made  with  the  intent  to  murder.  The  information 
here  is  sufficient  in  this  respect.  Anderson  v.  State  (decided  Jit 
present  term),  and  BrinMexj  v.  State,  44  Fla.,  413,  33  So.  Rep., 
204. 

Finding  no  errors,  the  judgment  of  the  court  below  in  said 
cause  is  hereby  affirmed. 

Note  (by  J.  F.  G.). — It  will  be  observed,  that  in  the  above  case,  both 
In  the  syllabus  and  In  the  opinion,  the  Court  refers  to  Brinkley  v. 
State,  decided  at  the  same  term.  The  syllabus,  by  the  Court,  in  the 
Brinkley  case  is  as  follows:       ^ 

"An  information  charging  as  follows:  'That  one  Sim  Brinkley,  of 
the  County  of  Duval  and  State  of  Florida,  on  the  27th  day  of  March  in 
the  year  of  our  Lord  one  thousand  nine  hundred  and  two,  in  the 
County  and  State  aforesaid,  of  his  malice  aforethought,  and  with  a 
premeditated  design  and  Intent  then  and  there  unlawfully  to  kill  and 
murder  one  Isaiah  Markham,  In  and  upon  him,  the  said  Isaiah  Mark- 
ham,  with  certain  deadly  weapons,  to  wit,  a  gun  and  a  pistol,  which 
he,  the  said  Sim  Brinkley.  then  and  there  held  In  his  hands,  unlaw- 


;i 


11 


208 


AMERICAN  CRIMINAL  REPORTS. 


a  i  'ii 


fully  an  assault  did  make,  and  him,  the  said  Isaiah  Markham,  did 
then  and  there  beat,  bruise,  wound,  and  ill-treat,  wherefore,  by  virtue 
of  the  statute  in  such  cases  made  and  provided,  the  said  Sim  Brinkley 
is  deemed  to  have  committed  the  crime  of  assault  with  Intent  to  mur- 
der, contraiy  to  the  form  of  the  statute,'  etc. — Held  to  sufficiently 
charge  the  crime  of  assault  with  intent  to  murder." 

The  Gray  case  was  cited  and  approved  in  Suviier  v.  State,  45  Fla.' 
— ,  33  So.  Rep.  981,  decided  March  17,  1903.    In  sustaining  the  indict- 
ment the  Court  said: 

"The  only  specific  objection  to  the  Indictment  made  in  the  motion 
is  the  alleged  failure  of  the  Indictment  to  name  the  deadly  weajjcn 
with  which  the  assault  was  made.  A  sufficient  answer  to  this  as 
signment  is  found  In  the  indictment  itself  that  charges  the  assault 
to  have  been  made  with  'a  deadly  weapon,  to  wit,  a  firearm  commonly 
known  as  a  musket,  which  said  musket  was  then  and  there  loaded  with 
gunpowder  and  leaden  shot'  " 

In  McDonald  v.  State,  —  Fla.  — ,  33  So.  Rep.  72,  decided  July  2S, 
1903,  in  passing  on  a  motion  in  arrest  of  judgment  the  Court  said: 

"The  first  ground  of  said  motion  is:  'Because  the  information  is  de- 
fective in  this:  that  it  does  not  state  or  set  forth  with  particularity 
the  manner  and  means  by  which  the  alleged  assault  was  attempted  to 
be  committed.' 

"An  examination  of  the  information  discloses  that  it  charges  that 
the  plaintiff  in  error  'an_  assault  did  commit  with  a  certain  doadly 
weapon,  to  wit,  a  pistol,  by  then  and  there,  without  authority  of  law, 
and  from  his  premeditated  design  to  effect  the  death  of  the  said  Dou- 
gal  Sampson,  with  the  said  pistol  firing  at,  shooting  at,  and  attempting 
to  shoot  him,  the  said  Dougal  Sampson,  with  the  felonious  intent  of 
him,  the  said  Risden  McDonald,  him,  the  said  Douglas  Sampson,  by 
such  shooting  and  attempts  to  shoot,  made  and  dene  with  the  said 
weapon  in  the  manner  aforesaid,  to  kill  and  mu'der,'  etc. 

"The  counsel  for  plaintiff  in  error  contend  that  this  information 
was  fatally  defective,  in  that  it  failed  to  allege  that  said  pistol  was 
load'M  with  powder,  leaden  ball,  etc. 

"This  contention  of  plaintiff  in  error  has  already  been  decided  by 
this  court  adversely  to  him.  See  Peterson  v.  State,  41  Fla.  2^,"),  2G 
South.  709,  the  first  and  second  headnctes  of  which  are  as  follcwj: 
'Where  an  indictment  charges  an  assault  with  a  named  weapon,  with- 
out designating  the  manner  of  its  use,  it  is  the  proper  function  of  evi- 
dence to  supply  the  particulars  by  pointing  out  the  specific  manner  in 
which  the  weapon  was  used  to  accomplish  the  alleged  assault.'  'Where 
an  indictment  charges  that  an  assault  was  committed  with  a  pistol, 
but  does  not  state  the  manner  in  which  it  was  used,  nor  that  it  was 
loaded,  nor  that  defendant  discharged  or  attempted  to  discharge  it, 
evidence  tending  to  show  tliat  the  pistol  was  loaded,  and  that  the  as- 
sault was  committed  by  discharging  it  at  the  person  assaulted,  is  prop- 
erly admissible.'  Also,  see  Brinklcy  v.  State,  44  Fla.  413,  33  South. 
296;  Gray  v.  State,  44  Fla.  436,  33  South.  205;  Anderson  v.  State.  U 
Fla.  413,  33  South.  294;  Drummer  v.  State,  45  Fla.  —  33  South.  1008." 


STATE  V.  VAUGHN.  £09 

State  v.  VAiJGiriT. 

64  Mo,  536—65  S.  W.  Rep.  236. 

Decided  November  12,  1901. 

Assault — Felonious  Assault:     Sufliciency   of   the  indictment — Sufflr 
ciency  of  evidence — Practice. 

1.  Indictment,  the  form  of  which  is  given  below,  held  sufQclent. 

2.  The  evidence  briefly  reviewed  In  the  opinion  and  held  sufficient 

to  sustain  conviction. 

3.  The  mere  fact  that  the  defendant  was  without  counsel  at  the  be- 

ginning of  the  case  was  not  prejudicial;    he  afterwards  being 
represented  by  two  firms. 

4.  Immaterial  irregularities  in  the  filing  of  the  motion  for  a  new 

trial. 

ApiJcal  from  Criminal  Court,  Buchanan  County ;  Hon.  B.  J. 
Castecl,  Judge. 

ilarion  Vaughn  convicted  of  felonious  assault,  appeals. 
^Vffirincd. 

The  indictment  was  as  follows : 

"State  of  Missouri,  County  of  Buchanan — ss. :  In  the  Crim- 
inal Court  of  Buchanan  County,  at  the  March  Term  Thereof, 
A.  D.,  1901.  The  grand  jurors  of  the  State  of  Missouri  within 
and  f(ir  the  body  of  the  county  of  Buchanan  aforesaid,  being 
duly  impaneled  and  sworn,  upon  their  oaths  do  present  that 
Marion  Vaughan,  on  the  28th  day  of  January,  1901,  at  the 
county  of  Buchanan  and  State  aforesaid,  did  unlawfully  and 
feloniously  in  and  upon  one  Henderson  Armstrong  make  an 
iis^iault,  and  did  then  and  there  feloniously  stab,  cut,  and  strike 
him,  and  said  Henderson  Armstrong,  with  a  certain  open  knife, 
then  and  there  a  dangerous  weapon,  which  said  knife  he,  the 
said  Marion  Vaughan,  in  his  hands  had  and  held,  and  he,  the 
said  Marion  Vauglin,  him,  the  said  Henderson  Armstrong,  with 
said  knife  as  aforesaid  did  feloniously  cut,  stab,  and  wound, 
wherchy  he,  the  said  Henderson  Armstrong,  was  maimed, 
noundcd,  and  disfigured,  and  received  great  bodily  harm;  con- 
trary to  the  form  of  the  statute  in  such  cases  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State." 

Duncan  &  Utz,  for  the  appellant. 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 

Vol.  XIII— 14 


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210 


AMERICAN  CRIMINAL  REFORTS. 


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E.  C.  Crow,  Attorney  General,  for  the  State. 

Gantt,  J.  At  the  March  term,  1901,  of  the  Criminal  Court 
of  Buchanan  county,  the  defendant  was  indicted  for  a  feluuious 
assault  on  Henderson  Armstrong,  whereby  said  Armstrong  was 
nnimed,  wounded,  and  disfigured,  and  received  great  bodily 
harm. 

Defendant  was  duly  arraigned,  a  plea  of  not  guilty  eutorod, 
and  on  a  trial  before  a  jury  he  was  convicted,  and  sentenced  tu 
the  penitentiary  on  the  -Itli  day  of  May,  1001,  from  which  sen- 
tence he  appeals  to  this  court. 

1.  The  indictment  Avas  drawn  to  charge  an  offense  under 
section  1849,  liev.  St.,  1899,  and  is  sufficient  for  that  purpose. 
Stnie  V.  Munaon,  76  Mo.  109;  State  v.  Havens,  95  Mo.  107,  8 
S.  W.  219;  State  v.  Freeman,  21  Mo.  481. 

2.  The  evidence  tends  to  show  that  the  prosecuting  witnos?, 
Henderson  Armstrong,  resided  in  the  city  of  St.  Joseph,  and 
the  defendant  in  the  country.  On  Sunday  of  the  week  in  wliicli 
the  assault  was  made  defendant  went  to  the  home  of  the  prose- 
cuting witness,  who  was  confined  to  his  bod  by  sickness  at  the 
time.  The  defendant  got  into  a  wordy  altercation  wiili  tho 
wife  of  Armstrong,  and  she  ordered  him  off  of  the  ]mniises; 
and  when  he  refused  to  go  she  started  to  get  a  gun,  which  was 
in  the  next  room,  whereupon  defendant  concluded  to  leave. 

The  prosecuting  witness  was  employed  as  a  teamster  fur  the 
firm  of  Brady  &  Wyatt,  who  had  a  wood  and  coal  yard.  On 
the  day  of  the  assault,  Armstrong  had  driven  into  tiie  yarl 
about  noon,  and  defendant  had  also  come  there  with  amithor 
teamster,  reaching  there  before  Armstrong  did.  He  loileroil 
around  until  Armstrong  had  put  up  his  team,  and  then 
approached  him,  and  began  to  talk  about  the  difficulty  of  the 
previous  Sunday,  and  said  Armstrong's  wife  had  called  liini  a 


of  a  b- 


and  no  one  could  call  him  that  ami 


black  s — 
,  live. 

The  prosecuting  witness  testified  that  as  he  started  out  of  the 
gate  defendant  followed  along,  and  kept  up  the  quarrel,  with  a 
knife  in  his  hand.  Defendant  threatened  to  get  even  with 
both  Armstrong  and  his  wife,  and,  seeing  defendant  was  aiming 
to  stab  him,  the  witness  picked  up  a  brickbat,  and  defendant 
started  at  him  with  the  knife,  and  he  threw  the  brickbat,  but 
missed   defendant,    and  thereupon   defendant   closed   in,  and 


STATE  V.  CLIMIE. 


211 


stnlbcd  witness  six  or  seven  times.  Armstrong  got  loose,  but 
dcfi'iulant  followed,  cutting  him  as  he  ran.  Armstrong  finally 
btopi)ed,  and  caught  defendant's  hands,  and  held  him  so  he 
could  not  cut  him,  until  Air.  Brady  and  others  separated  them, 
and  took  the  knife  away  from  defendant. 

The  physician  testified  that  both  of  Armstrong's  ears  were 
cut,  several  gashes  three  to  four  inches  long  in  his  head,  and 
one  niisac'd  the  jugular  vein  only  a  quarter  of  an  inch. 

Defendant  testified  that  Armstrong  was  the  aggressor,  and 
ho  cut  him  because  he  threw  the  brick  and  a  rock  at  him. 

The  court's  ijistructions  were  full,  and  arc  without  objection. 
Tlurc  was  ample  evidence  to  sustain  the  verdict,  if  believed  (as 
it  was)  by  the  jury.  The  record  discloses  that,  while  the  defend- 
ant was  without  counsel  in  the  beginning,  he  was  represented  by 
two  firms  before  the  cause  was  finished  in  the  criminal  court. 
Two  motions  for  now  trial  were  filed,  neither  of  which  was  filed 
in  time,  so  far  as  the  record  shows.  The  first  was  filed  April  1, 
1!)01,  but  was  "dated  Alarch  28,  1901."  Exactly  what  virtue 
tlurc  was  in  antedating  it  we  have  been  unable  to  divine.  The 
trial  court,  however,  does  not  seem  to  have  overruled  them  on 
the  f;round  that  tli(?>'  were  not  filed  in  time.  We  have  read  the 
entire  record,  and  it  is  exceptionally  free  of  error.  It  discloses 
that  the  prosecuting  witness  Avas  badly  disfigured,  and  that,  had 
the  knife  of  defendant  penetrated  one-quarter  of  an  inch  deeper, 
this  prosecution  would  have  been  for  murder,  instead  of  a 
felonious  assault.    The  punishment  is  not  at  all  severe. 

The  judgment  is  affirmed.     All  concur. 


State  v.  Climie. 

12  N.  D.  33—94  N.  W.  Rep.  574. 

Decided  April  28,  1903. 

ASSAl'I.T     AND     BaTTEBY     WITH     DaNGEBOUS     WEAPON — INFORMATION:       A 

single  count  Information  may  include  several  grades  of  the  same 
offense — Practice  as  to  demurrer. 

1.  When  the  offense  cliarged  in  the  information  includes  another 
smaller  constituent  offense,  the  charge  of  such  other  offense  will 
not  render  the  information  duplicitous. 


For  rases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


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212 


AMERICAN  CRIMINAL  REPORTS. 


2.  On  an  Indictment  or  information  for  assault  and  battery  with  a 

dangerous  weapon,  without  Justifiable  or  excusable  cause,  and 
with  intent  to  do  bodily  harm,  as  defined  in  section  7145,  Uev. 
Codes,  accused  can  lawfully  be  convicted  of  a  simple  assault  and 
battery. 

3.  An  information  is  sufficient  which  sets  out  every  ingredient  of 

the  offense  defined  by  statute,  and  in  the  language  of  the  statute, 
together  with  the  identifying  particulars  indicated  by  sectinaa 
8039,  8040,  and  8047,  Rev.  Codes. 
(Syllabus  by  the  Court.) 

Appeal  from  the  District  Court,  Griggs  County ;  Hon. 
Glaspell,  Judge. 

Benjamin  K.  Climie,  convicted  of  assault  and  battery, 
appeals.    Affirmed. 

Lee  Combs,  for  the  appellant. 

Benjamin  Tufts,  State's  Attorney,  for  the  State. 

Cochrane,  J.  The  accused  was  informed  against  by  the 
State's  Attorney  of  Griggs  County  for  an  assault  and  battery 
with  a  dangerous  weapon,  with  intent  to  do  bodily  harm, 
and  without  justifiable,  or  excusable  cause,  as  defined  in  sec- 
tion 7145,  Rev.  Codes. 

The  information,  omitting  the  title,  commencement,  and  con- 
cluding part,  reads  as  follows : 

"Benjamin  Tufts,  State's  Attorney  in  and  for  said  County 
of  Griggs  and  State  of  ^orth  Dakota,  in  the  name  and  by 
the  authority  of  the  State  of  North  Dakota,  informs  this 
court  that  heretofore,  to-wit,  on  the  twelfth  day  of  Jiuie,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  two,  at  the 
County  of  Griggs,  in  the  State  of  North  Dakota,  one  Benjamin 
K.  Climie,  lato  of  the  County  of  Griggs  and  State  aforesaid, 
did  commit  the  crime  of  assault  and  battery,  with  a  danger- 
ous weapon^,  in  the  manner  following,  to-wit:  That  at  said 
time  and  place  the  said  Benjamin  K.  Climie,  without  jnstili- 
able  or  excusable  cause,  armed  with  a  dangerous  weapon,  and 
with  intent  to  do  bodily  harm  in  and  upon  the  person  of  one 
George  H.  Lawrence,  then  and  there  being,  did  willfully,  nn- 
lawfuUy,  and  feloniously  commit  an  assault,  and  him,  the  said 
George  H.  Lawrence,  the  said  Benjamin  K.  Climie,  then  and 
there  armed  with  a  dangerous  weapon,  and  without  justifiable 
or  excusable  cause,  willfully,  unlawfully,  and  feloniously,  and 


STATE  V.  CLIMIB. 


213 


■with  said  dangerous  weapon,  and  with  intent  to  do  bodily 
harm  to  said  George  II.  Lawrence,  did  strike  and  ill  treat 
and  wound  in  and  about  the  head." 

The  statute  upon  which  this  information  was  drawn  reads: 

''Every  person  who,  with  intent  to  do  bodily  harm  and 
without  justifiable  or  excusable  cause,  commits  any  assault  or 
assault  and  battery  upon  the  person  of  another,  with  any  sharp 
or  dangerous  weapon,  or  who  without  such  cause  shoots  or 
attempts  to  fehoot  at  another,  with  any  kind  of  firearm  or  air 
giin  or  other  means  whatever,  with  intent  to  injure  any  person, 
although  without  intent  to  kill  such  person  or  to  commit  any 
felony,  is  punishable  by  imprisonment  in  the  penitentiary  not 
less  than  one  and  not  exceeding  five  years,  or  by  imprisonment 
in  a  county  jail  not  exceeding  one  year." — Section  7145,  Eev. 
C'ofles. 

Appellant  assails  this  information,  as  duplicitous,  and  claims 
to  have  saved  his  right  to  insist  upon  thir,  objection  on  appeal  by 
(ho  interposition  in  proper  time  of  a  demurrer,  specifying  as 
grounds  therefor  that  more  than  one  offense  is  charged  in  the 
information.  Counsel  for  the  State  seek,  by  a  preliminary 
motion,  to  eliminate  from  the  record  in  this  case  the  demurrer 
to  tlie  information,  because  it  was  not  reduced  to  writing  and 
signed  by  defendant's  counsel  and  filed  with  the  clerk  before 
trial.  Counsel  for  appellant  insists  that  his  objections  to  the 
information  were  dictated  to  the  stenographer  before  pleading 
and  in  open  court;  that  permission  was  given  him  to  file  his 
formal  demurrer  later,  as  of  the  date  when  his  objections  were 
in  fact  made. 

We  will,  for  the  purposes  of  this  case,  assume,  without  decid- 
ing the  motion,  that  the  demurrer,  as  required  by  section  8092, 
Rev.  Codes,  was  filed  in  proper  time.  Unless  the  demurrer  was 
so  filed,  distinctly  specifying  duplicity  as  one  ground  of  objec- 
tion, the  assignment  that  the  information  is  duplicitous  could 
not  he  considered  on  this  appeal,  as  the  point  is  waived  if  not 
taken  by  demurrer.     Section  8099,  Eev.  Codes. 

A])pellant  insists  that  the  information  charges  a  felonious 
assault,  and  also  an  assault  and  battery  with  a  dangerous 
weapon,  with  intent  to  do  bodily  harm,  and  is  therefore 
duplicitous. 

An  assault  is  necessarily  included  as  a  constituent  element  iu 


I 


■Bi' 


214 


AMERICAN  CRIMINAL  REPORTS. 


every  assault  and  battery,  and  of  assault  and  battery  with  a  dan- 
gerous weapon,  with  intent  to  do  bodily  harm.  While  an  ai^sauU 
is  an  offense,  an  assault  followed  by  a  battery  is  also  a  siiii>\o 
offense.  There  cannot  be  a  battery  without  an  assault.  At  com- 
mon law,  an  assault  and  battery  committed  at  the  same  time  was 
considered  as  but  one  offense,  and  could  be  so  charged.  An 
assault  not  followed  by  a  battery  could  be  punished  as  an  offeiiso, 
but  if  followed  by  a  battery  the  assault  was  merged  in  the  Lat- 
tery. 1  Hawkins'  P.  C.  263,  c.  62,  §  1 ;  Com.  v.  Eaton,  15  Pick. 
273;  Com.  v.  Tuclc,  20  Pick.  361;  State  v.  Reed,  40  Vt.  603; 
Slate  V.  Locklin,  59  Vt.  654,  10  Atl.  464. 

In  Com.  V.  Tuck,  the  court,  in  citing  the  rule  against  dupli- 
city, said:  "It  has  exceptions.  Where  two  crinios  are  of  the 
same  nature,  and  necessarily  so  connected  that  they  may,  and, 
when  both  are  committed,  must,  constitute  but  one  legal  oifcnso, 
they  should  be  included  in  one  charge."  The  court  then  in- 
stances assault  and  battery  as  a  familiar  example  of  the  ruh 
stated. 

Our  statute  follows  this  distinction.  As  assault  is  defined 
as  "any  Avillful  and  unlawful  attempt  or  offer,  with  force  or 
violence,  to  do  a  corporal  hurt  to  another."  Section  TUl, 
Key.  Codes.  "A  battery  is  any  willful  and  unlawful  uso  of 
force  or  violence  upon  the  person  of  another."  Section  7142, 
Rev.  Codes.  Every  willful  use  of  force  necessarily  include  s  a 
willful  attempt  or  offer  to  use  force.  If  the  attempt  falls  sliort 
of  actual  acoomplishment,  it  is  punishable,  if  willfully  and 
unlawfully  done;  but  if  the  attempt  is  successful  of  accomjilisli- 
ment,  and  an  actual  battery  results,  the  assault  and  batlorv  is 
by  the  statute  described  as  but  a  single  offense.  The  assault  is 
merged  in  the  assault  and  battery.  Section  7144,  Rev.  Codes. 
Likewise  the  aggravated  assault  and  battery  with  a  sharp  or 
dangerous  weapon  (described  in  section  7145,  Rev.  Codes)  in- 
cludes within  it  the  smaller  constituent  offense  of  simple  assault 
and  battery ;  and  it  would  be  absurd  to  say  that  an  information 
could  not  charge  the  aggravated  assault  and  battery  defined  by 
this  section  without  rendering  it  obnoxious  to  the  section  declar- 
ing that  the  information  must  charge  but  one  offense.  Tlio 
rule  is  that,  when  the  offense  charged  includes  another  or 
smaller  constituent  offense,  the  charge  of  siich  other  offense 
will  not  render  the  information  double.    State  v.  Lillie,  21  Kan. 


STATE  V.  CLIMIE. 


215 


729;  State  v.  Hodges  (Kan.)  2G  Pac.  G70;  Territory  v.  Milroy 
(}Um\.)  20  Pac.  G50;  Lawhead  v.  Slate  (Neb.)  65  N.  W. 
77t);  Aiken  v.  State  (Xcb.)  59  K  W.  888. 

The  statute  authorizing  the  conviction  of  one  accused  of  any 
offense  necessarily  included  in  that  with  which  lie  is  charged  in 
the  information  is  a  legislative  recognition  of  this  rule.  ,^.o- 
tion  82-14,  Eev.  Codes.  In  the  case  at  bar  the  information 
does  not  charge  simply  an  assault  with  a  dangerous  weapon, 
but  an  assault  and  battery  Avith  a  dangerous  weapon.  There- 
fore the  language  quoted  by  counsel  for  appellant  from 
the  opinion  in  State  v.  Marcl's,  3  N.  D.  532,  58  N.  W.  25,  ia 
ina])plicable. 

For  the  reasons  already  expressed,  defendant's  objection  that 
he  could  not  be  legally  convicted  of  assault  and  battery  upon 
this  information  is  without  merit.  Stale  v.  Maloney,  7  N.  I). 
110,  72  K  W.  927;  State  v.  Monlrjomery,  9  N.  D.  405,  83 
X.  W.  873 ;    Slate  v.  Bclyea,  9  N.  D.  353,  363,  83  N.  W.  1. 

Dotendant's  demurnr  stated  the  second  and  further  ground 
that  the  information  does  not  charge  facts  sufficient  to  con- 
stitute a  public  oifense.  Defendant's  counsel  does  not  point 
out  wherein  he  considers  the  accusation  insufficient.  A  com- 
])aris()n  of  this  pleading  with  the  statute  on  which  it  is  drawn 
will  disclose  the  fact  that  the  pleader  has  set  forth  every  in- 
gredient of  the  oifense  defined  by  the  statute,  and  in  the 
language  of  the  statute,  and  also  such  identifying  particulars 
of  lime,  place,  means,  party  injured,  and  circumstance  as  to 
fully  advise  the  accused  of  the  exact  nature  of  the  cliargo 
against  him.  It  fiilly  answers  the  statutory  provisions  as  to 
certainty*  and  sufficiency.  Sections  8039,  8040,  8047,  Eev. 
Codes. 

The  judgment  appealed  from  is  affirmed.    All  concur. 


!l 


tiii 

1 1 


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216 


AMERICAN  CRIMINAL  REPORTS. 


ixM 


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KiDD  V.  Tebritoey. 

C  Okl.  450—60  Pac.  Rep.  114 
Decided  February  8,  1900. 

Assault  and  Batteby — Practice:    Sentence  in  excess  of  verdict. 

Where  the  Jury  And  the  defendant  guilty  of  assault  and  battery, 
and  the  Court  sentences  him  for  the  crime  of  an  assault  with  in 
tent  to  liill,  this  variance  id  reversible  error. 

(Syllabus  by  the  Court.) 

Error  to  District  Court,  Kingfisher  County;  Justice  John  ('. 
Tarsnpy. 

James  W.  Kithl,  fcund  guilty  of  assault  and  battery,  sen- 
tenced for  assault  with  intent  to  kill,  brings  error.      Kcversed. 

/.  F.  Crow  and  L.  M.  Lane,  for  the  plaintiff  in  error. 

No  brief  filed  for  the  Territory. 

Ikwix,  J.  In  tliis  case  there  are  19  assignments  of  error, 
but  we  think  it  only  necessary  to  refer  to  one.  That  is  the  vvw.i 
assigned  that  the  court,  in  pronouncing  sentence,  found  tlio 
defendant  guilty  of  a  different  and  higher  degree  of  offense  than 
that  authorized  by  the  verdict  of  the  jury.  A  reference  to  the 
verdict  of  the  jury  will  be  found  on  page  72  of  the  record. 
The  verdict  reads  as  follows: 

"We,  the  jury  duly  selected,  impaneled,  And  sworn,  in  the 
above-entitled  cause,  find  the  defendant  guilty  of  assault  and 
battery.     F.  L.  Boling,  Foreman." 

A  reference  to  tlie  sentence  of  the  court,  on  page  77  of  tlio 
record,  will  show  the  following: 

"October  22d,  1898.  12th  Judicial  Day.  Criminal  Cause 
Xo.  711.  (Territory  of  Oklahoma  v.  James  W.  Kidd.)  .Judg- 
ment and  Sentence.  Comes  now  defendant  into  c])en  court  for 
judgment  and  sentence  on  the  verdict  of  guilty  heretofore  ren- 
dered in  said  cause.;  and  now,  defendant  giving  no  good  reason 
why  the  judgment  and  sentence  of  the  court  should  not  at  this 
time  be  pronounced  upon  him,  on  the  verdict  herein,  the  conrc 
finds  that  the  said  defendant  is,  on  the  verdict  herein,  guilty 
of  assault  with  intent  to  kill.  It  is  therefore  considered, 
ordered,  and  adjudged  that  the  defendant,  James  W.  Kidd,  bo, 

For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


IN  RE  BRICKET. 


217 


and  hereby  is.  fined  in  tlin  sum  of  one  hundred   ($100.00) 

(lolljirs,  and  the  costs  of  this  action,  taxed  at  $ ,  and 

that  lie  be  imprisoned  in  the  county  jail  for  a  period  of  thirty 
(lnvs.  And  now  the  court  informs  defendant  of  his  right  oi 
iil)|)(  {il,  and  bail  pending  said  appeal  is  fixed  at  $300,  and  teti 
(Inys  given  to  take  appeal,  (U)  days  to  prepare  and  serve  case- 
miidc,  ten  days  to  suggest  amendments  thereto,  to  be  signed  and 
settled  on  five  days'  notice.  To  the  rendition  of  which  said 
ju<lgiuent  and  sentence  tiu;  defendant  excepts  at  the  time." 

By  the  record  it  clearly  ai)pears  that  while  the  jui'y  have 
found  the  defendant  guilty  of  simple  assault  and  battery,  which 
uiuK  r  our  statute  is  a  misdemeanor,  the  court  has  found  the 
(lcf(  iidiuit  guilty  of  a  felony,  to-wit,  an  assault  with  intent  to 
kill,  which,  we  have  no  doubt,  is  clearly  reversiljle  error. 

While  the  punishment  inflicted  is  the  maximum  punis'hment 
for  assault  and  battery,  it  is  also  the  minimum  punishment  for 
the  crime  of  assault  with  intent  to  kill,  as  provided  by  our 
statute.  Now,  it  seems  to  us  that  the  law  never  intended  that 
tlio  court  should  pass  sentence  and  judgment  upon  a  dofendantj 
finding  him  guilty  of  a  greater  or  more  serious  offense  than 
that  of  which  the  jury  by  their  verdict  had  convicted  him.  In 
this  case,  if  allowed  to  stand,  the  record  woxild  show  that  the 
jury  iiad  found  the  defendant  guilty  of  a  misdemeanor,  and 
the  court,  passing  sentence  upon  that  verdict,  had  increased 
the  degree  of  the  offense  to  make  it  a  felony. 

This  we  think  is  error,  for  which  the  judgment  is  reversed, 
and  the  cause  remanded  for  septence  in  accordance  with  tho 
verdict  of  the  jury,  and  costs  assessed  to  Ivingfisher  county. 

All  of  the  justices  concurring. 


In  re  Buickey. 

8  Idaho,  597—70  Pac.  Rep.  609. 
Decided  November  15,  1902. 

Carbying   Weapons — CoxRxrrrTioNAL  Rioht  to  Beab  Abms — Habeas 
Corpus:    Void  Statute. 

1.  The  act  of  the  territorial  legislature  approved  February  4,  1889, 
which  prohibits  private  persons  from  carrying  deadly  weapons 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 

this  volume. 


218 


AMERICAN  CRIMINAL  REFORTS. 


t; 


i) 


within  the  llmlta  or  conflnea  of  any  city,  town,  or  vlllago  In 
Idaho,  contravenes  the  provlHions  of  the  Herond  amendment  to  the 
federal  constitution  and  the  provisions  of  section  11,  art.  1,  of 
the  Constitution  of  Idaho,  and  is  void. 
2.  While  it  is  undoubtedly  within  the  powe;  of  the  legislature  to  pro- 
hibit the  carrying  of  concealed  deadly  weapons,  and  such  rPKu- 
latlon  is  a  proper  exercise  of  police  power,  yet  the  legislature  does 
not  possess  the  power  to  prohibit  the  carrying  of  flrearms,  as 
the  right  to  do  so  is  guaranteed  to  the  citizen  both  by  our  federal 
and  State  constitutions. 
(Syllabus  by  the  Court.) 
Additional  syllabus  (by  J.  F.  O.). 
The  prosecution  being  based  on  a  void  act  of  the  legislature,  the 
Court  had  no  jurisdiction  of  the  subject  matter;  hence  the  judg- 
ment of  (onvlctlcn  was  void,  and  the  commitment  cf  the  prisoner 
under  such  conviction  was  illegal  and  veld. 

A])plic'nti((n  of  L.  1).  Brickey  to  the  Supremo  Oourt  of  Llalut 
for  H  writ  of  habeas  corpus;  writ  granted  and  prisoner  dis- 
charged. 

N.  .S'.  Dcnniiif/,  for  petitioner. 

Miles  *V.  Johnson,  County  Attorney,  for  the  State. 

Qi'AKi.Ks,  r.  J.  The  petitioner  applies  to  this  court  for  ;i 
writ  of  habeas  eorpus,  and  in  the  petition  sets  forth  and  shows 
that  he  is  mi  I  awfully  imprisoned,  confined,  and  restrained  of  his 
liherty  hy  A.  W.  Kroutinger,  sheriff  of  Ncz  Perce  county,  at 
the  (Vninty  Jail  in  the  County  of  Xez  Perce,  in  the  State  of 
Idaho;  that  he  is  so  imprisoned  under  a  commitment  wliicli 
issued  out.  of  the  justice's  court  of  West  Lewiston  precinct,  ii 
the  County  "of  Xez  Perce,  in  a  criminal  action  ■wherein  peti- 
tioner was  convicted  upon  the  charge  of  carrying  a  d('a<l'y 
weajKm,  to-wit,  a  loaded  revolver,  within  the  limits  and  confines 
of  the  city  of  Lewiston,  contrary  to  the  provisions  of  the  act  (if 
the  Territory  of  Idaho,  approved  February  4,  1889  (Sesi^. 
Laws  1S8!),  p.  27)  ;  and,  in  accordance  with  the  prayer  of  said 
])etition,  the  writ  was  issued,  and  return  thereto  duly  made  by 
the  said  sheriff.       ^ 

From  the  jjctition  and  return  it  appears  that  the  only  offonse 
charged  against  the  petitioner,  of  which  he  has  been  convicted, 
and  is  now  restrained  of  his  liberty,  is  that  he  carried  a  deadly 
weapon  within  the  limits  of  the  city  of  Lawiston,  in  contraven- 
tion of  the  said  act  of  February  4,  1889. 


BUii 


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r,  I 


IN  RE  BRICKBY. 


219 


Tlio  second  nmrndmont  to  the  federal  constitution  is  in  tho 
following  language: 

'•A  well  regulated  militia,  being  necessary  to  the  security  of 
ft  free  State,  the  right  of  the  i)cople  to  keep  and  bear  anns, 
shnli  not  be  infringed." 

The  language  of  section  11,  art.  1,  Const,  of  Idaho,  is  as 
follows: 

"The  people  have  the  right  to  l)ear  arms  for  their  security 
and  defense,  but  the  Legislature  shall  regulate  the  exercise  of 
this  right  by  law." 

I'lider  these  constitutional  provisions,  the  Legislature  has  no 
power  to  prohibit  a  citizen  from  Iwaring  arms  in  any  portion 
of  the  State  of  Idaho,  whether  within  or  without  the  corporate 
limits  of  cities,  towns,  and  villages.  The  Legislature  may,  as 
exi)iv.>.-'_  provided  in  our  State  (Constitution,  regulate  the  exer- 
cise of  this  right,  but  may  not  prohibit  it.  A  statute  prohibit- 
iup'  the  carrying  of  concealed  deadly  weapons  would  be  a  proper 
exercise  of  tho  police  power  of  the  State.  But  the  statute  in 
question  does  not  prohibit  the  carrying  of  weapons  concealed, 
which  is  of  itself  a  pernicious  practice,  but  prohibits  the  carry- 
ing of  them  in  any  manner  in  cities,  towns,  and  villages.  We 
are  conijielled  to  hold  this  statute  void. 

The  statute  being  void,  tho  said  justice's  court  had  no  juris- 
diction of  the  subject-matter  of  the  action,  and  the  said  judg- 
tiK  '  "<"  conviction,  and  the  commitment  which  issued  thereon, 
and  tlic  detention  of  the  petitioner  under  said  commitment  and 
jndaiiH  "t  of  conviction,  are  illegal  and  void. 

Tlu  nl  judgment  lieing  void,  habeas  corpus  will  lie,  and  the 
prisoner  should  be  discharged  from  custody,  and  it  is  so  ordered. 

Sullivan  &  Stockslaoer,  J.  J.,  concur. 

Note.— For  general    lotc,  see,  8  American  Criminal  Reports  128-131. 


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220 


AMERICAN  CRIMINAL  REPORTS. 


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State  v.  Brown. 

125  N.  C.  704—34  S.  E.  Rep.  549. 
Decided  December  22.  1899. 

Cabbvixo  Concealed  Weapon:     Construction   of  Statute— Matters  of 
defense — Special  Verdict. 

1.  Carrying  a  concealed  weapon  by  one  who  at  the  time  Is  not  on  hig 

own  premises,  Is  a  violation  of  the  Statute;  the  concealment  and 
not  the  purpose,  being  the  gist  of  the  offense. 

2.  The  fact  that  the  weapon  was  concealed  raises  a  presumption  of 

an  intent  to  so  carry  It,  which  presumption  may  be  rebutted. 

3.  A  special  verdict  which  finds:  that  the  accused,  while  not  on  his 

own  premises,  carried  a  concealed  pistol;  but  Is  silent  as  to  the 
intent  to  conceal,  Is  a  finding  of  guilty. 

Appeal,  by  the  State,  from  Superior  Court,  Iredell  County; 
Hon.  W.  S.  O'B.  Robinson,  Judge. 

Indictment  for  carrying  a  pistol  concealed  upon  the  person. 
Special  verdict,  finding  the  facts.  Judgment  for  the  det'onihint. 
The  Solicitor  excepted  and  appealed  to  the  Supreme  Court. 
Reversed. 

Attorney  General,  for  the  State. 
No  Counsel,  contra. 

Claek,  J.  The  defendant  is  indicted  under  the  Code,  sec. 
1005,  which  makes  it  a  misdemeanor  "if  any  one,  exc-]>t,\vlion 
on  his  own  premises,  shall  carry  concealed  about  his  per^iim  any 
deadly  Aveapon" — reciting  the  kinds  of  weapons,  and  excepting 
certain  classes  of  persons,  and  making  the  possession  al)niit  the 
person  prcsumptjon  of  concealment.  The  special  verdict  timl! 
that  "the  defendant  had  in  his  hip  pocket  concealed  a  pistol, 
off  his  own  premises."  This  comes  within  the  letter  and  moan- 
ing of  tjio  statute.  The  special  verdict  fiirther  finds  tluit  tlie 
defendant  was  "carrying  the  pistol  for  the  purjiose  of  delivorv 
to  a  party  to  whom  he  had  sold  it;  that  it  accidentally  dmitpe'l 
froi''  his  ^(ocket,  while  engaged  in  catching  a  chicken  loose  upon 
the  streets." 

In  State  v.  Dixon,  114  N.  C.  850,  it  is  said:  "In  trials  for 


For  cases  la  previous  volumes  on  any  subject,  see  Table  cf  Tayics  in 
this  volume. 


fflTT 


STATE  V.  BROWN. 


221 


this  offense  it  must  be  borne  in  mind  that  the  guilty  intent  is 
the  intent  to  carry  the  weapon  concealed,  and  does  not  depend 
upon  the  intent  to  use  it.  The  object  of  this  statute  is  not  to 
forbid  the  carrying  of  a  deadly  weapon  for  use,  but- to  prevent 
an  opportunity  and  temptation  to  use  it  arising  from  conceal- 
ment. If  the  weapon  is  carried  for  lawful  use,  or  even  for 
unlawful  use,  the  defendant  would  not  be  guilty  under  this 
section,  if  the  weapon  is  carried  openly,  since  this  statute  applies 
not  to  the  act  of  carrying  the  weapon  or  the  purpose  in  carrv'- 
ing  it,  but  to  the  manner  of  carrying  it."  This  case  reviewed 
previous  authorities,  and  has  itself  been  oited  and  followed  in 
Slak  V.  Pigford,  117  N.  C.  748;  Sfaie  v.  Beams,  121  N.  C. 
55G. 

In  this  last  case,  Faircloth,  C.  J.,  says:  "The  offense  of 
carrying  a  concealed  weapon  about  one's  person  and  off  his  own 
premises  consists  in  the  guilty  intent  to  carry  it  concealed,  and 
not  in  the  intent  to  use  it,  and  the  possession  of  the  deadly 
weapon  raises  the  presumption  of  guilt,  which  presumption  may 
be  rcl)utted  by  the  defendant."  Here,  the  special  verdict  finds 
that  the  deadly  weapon  was,  in  fact,  carried  concealed,  and 
the  jury  do  not  find  that  there  was  no  intent  to  "carry  it  con- 
cealed"— which  is  what  the  statute  forbids.  The  jury  find  that 
the  purpose  of  carrying  it  was  for  delivery  to  another,  but,  as 
the  alnive  decisions  hold,  the  purpose  of  carrying  it  is  not  to 
the  ])('int.  The  question  is,  as  to  the  manner  of  carrying, 
whether  it  was  concealed  or  not,  and  it  might  be  shown  in 
defense  that  there  was  no  intent  to  conceal  it,  which  the  jury 
might  find  when  the  deadly  weapon  is  conveyed  simply  as 
merchandise.  But  the  absence  of  intent  to  conceal  must  be 
affirmatively  found  to  rebut  the  presumption  arising  from  the 
concealment,  and  the  jury  not  having  found  that,  notwithstand- 
ing the  concealment,  there  was  no  intent  to  conceal,  judgment 
upon  the  special  verdict  should  have  been  entered  against  the 
defendant. 

The  authorities  upon  this  subject  are  conveniently  grouped 
on  Walser's  Digest,  72 ;  5  Am.  and  Eng.  Enc,  734  (^d  Edi- 
tion). 

Reccrsed. 


•' 


.1  i- 


-  il 


t.'J 


222  AMERICAN  CRIMINAL  REPORTS. 


State  v.  Smith. 

113  Ga.  645—38  S.  E.  Rep.  965. 

Decided  May  27.  1901. 

Cabbyino   Concealed  Weapon:     Insufficiency   of   evidence. 

Lumpkin,  P.  J. — Evidence  that  the  accused,  who  was  charged  with 
carrying  a  pistol  concealed,  owned  such  a  weapon;  that  he  car- 
ried it  in  an  open  manner  from  his  home  to  a  party  which  was 
had  at  night;  that  while  at  the  same  he  accidentally  shot  an- 
other person  with  the  pistol;  and  that  the  latter  "had  seen  [the 
accused]  several  times  that  night  before  pistol  fired,  and  he  saw 
no  pistol  until  after  he  was  shot," — was  not  sufficient  to  show 
beyond  a  reasonable  doubt,  and  to  the  exclusion  of  every  other 
rational  hypothesis,  that  the  accused  had  the  pistol  on  his  per- 
son all  of  the  time  the  party  was  in  progress,  up  to  the  moment 
when  the  weapon  was  fired,  or  that  at  any  time  en  the  night 
in  question  he  actually  had  or  carried  the  pistol  on  his  iieison 
so  concealed  that  it  might  not  have  been  visible  from  some  point 
of  view  not  occupied  by  the  person  who  was  shot  when  he  was 
looking  at  the  accused. 

(Syllabus  by  the  Court.) 

Certiorari,  to  Suj»v  rior  Court,  Greene  County ;  Hon.  Julin  C. 
Hart,  Judge.  " 

Foster  Smith,  convicted  of  carrying  concealed  ■wcapnn*,— 
brings  error.    Reversed. 

oos.  P.  Brown,  for  the  plaintiff  in  error. 
//.  Lewis,  Solicitor  ''jlcneral,  and  James  Davidson,  for  tho 
State. 

Pek  Cut?iam.    Judgment  reversed. 

Note. — The  case  was  tried  In  Superior  Court  on  March  4,  1901. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


ifrn 


RAY  V.  STATE.  223 


Ray  v.  State. 

44  Tex.  Crim.  Rep.  158—70  S.  W.  Rep.  23. 

Decided  June  24,   1902. 

Carryinc!  a  Pistol,  by  a  police  officer,  elsewhere  than  in  the  city  of 

his  appointment. 

1.  Although  a  police  officer,  is  by  law  authorized  to  carry  a  pistol 

within  the  city  by  which  he  is  appointed  and  in  which  he  is  on 
fluty,  he  has  no  right  to  do  so  when  within  another  jurisdiction. 

2.  Irving  v.  State,  18  Tex.  App.  51,  as  to  the  right  of  a  deputy  sheriff, 

v.hen  on  dutj',  to  carry  a  weapon  to  another  part  of  the  State, 
distinguished. 

Appeal  from  District  Court,  Bexar  County;    lion.  R.  B, 
Green,  Judge. 
Al  Ray,  convicted  of  carrying  a  pistol,  appeals.     Affirmed. 

George  R.   GUlvite,  Henry  C.  King,  Jr.,  and  McLean  cC- 
Scotf,  for  the  appellant. 
Robert  A.  John,  Assistant  Attorney-General,  for  the  State. 

IIicxnEESON,  J.  Appellant  was  convicted  of  carrying  a  pistol 
in  the  city  of  San  Antonio,  Bexar  county,  and  his  punishment 
ass('ss(  (I  at  a  fine  of  $50 ;   hence  this  appeal. 

lie  clainis  that  the  conviction  ought  not  to  be  sustained 
because  at  the  time  he  was  a  policeman  of  the  city  of  Ft.  Worth, 
and  a^  such  wa.s  exempt  from  the  operation  of  the  law  against 
carrying  pistols.  In  sup])<)rt  of  his  contention  ho  refers  us 
to  tiu'  case  of  Claijlon  v.  Slate,  21  Tex.  Crim.  App.,  343,  17  S. 
W.,  2(il,  and  Ircine  v.  Same,  18  Tex.  Crim.  App.,  51.  The  last- 
nanud  case  is  not  in  point,  inasnmch  as  it  was  proven  there 
that  appe'lant  at  the  time  he  was  found  carrying  the  pistol 
was  a  (lej)uty  sheriff,  and  though  not  in  his  own  county  was  in 
Montague  county,  iiursuing  a  horse  thief.  It  is  said  in  that 
case  that  at  the  time  he  was  a  civil  officer  and  engaged  in  the 
discharge  of  his  official  duty.  Clayton's  Case  does  support 
appplhuit's  contention.  There  the  broad  proposition  is  asserted 
that  a  deputy  sheriff  is  a  peace  officer,  and  as  such  is  excepted 
from  the  operation  of  the  law  against  carrying  pistols  in  any 
county  in  the  State.    If  this  be  the  law,  article  338,  Pen.  Code, 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 

this  volume. 


yh.t 


:;:^k 


224 


AMERICAN  CRIMINAL  REPORTS. 


l)Uts  policemen  on  the  same  plane  with  peace  officers.     The 
construction  placed  on  said  article  is  that  the  statute  places  no 
qualification  on  the  clause  with  reference  to  peace  officcris   but 
authorizes  every  peace  officer  or  policeman  everywhere  and  nt 
all  times  to  carry  a  pistol.    We  do  not  believe  this  is  a  proper 
interpretation  of  the  statute.    A  person  may  be  a  peace  rttlicor 
in  one  section  of  the  State  and  not  in  another,  but  is  simply  a 
local  peace  officer;  and  while  in  his  bailiwick  he  is  a  peace  oIK- 
cer,  but  when  he  leaves  there  and  goes  to  some  other  section  lie 
cannot  perform  the  functions  of  his  office,  and  he  has  no  more 
authority  than  any  other  private  citizen.     Of  course,  when  he 
goes  outside  of  his  immediate  jurisdiction  to  perform  some  duty 
in  some  other  part  or  section,  which  he  is  authorized  uiid(  r  the 
law  to  do,  his  official  character  remains  with  him;  but  not  so  in 
the  absence  of  such  official  duty.     In  this  case  appellant,  iis  a 
policeman  of  the  city  of  Ft.  Worth,  could  i)erfonn  no  f  unci  inns 
of  his  office  in  San  Antonio.    lie  could  not  execute  process  of 
any  kind,  but,  if  he  desired  to  have  an  arrest  made,  would  have 
been  compelled  to  call  on  the  local  authorities.     Consequently 
he  was  not  a  peace  officer  there,  but  merely  a  private  citiz(>n. 
The  pretense  that  he  may  have  ^one  there  as  a  detective  to  find 
a  suit  of  clothes  that  had  been  stolen  from  W.  II.  Ward,  one  of 
the  aldermen  of  Ft.  Worth,  Ave  can  but  regard  as  a  suhtcrfiii.''c. 
It  certainly  gave  him  no  authority  to  carry  a  pistol  on  the  fair 
grounds  into  a  public  assembly  in  the  city  of  San  Antonio. 
The  judgment  is  affirmed. 


Wjiitk  v.  State. 

Texas— Court  of  Criminal  Appeals— C6  S.  W.  Rep.  773—22  Chi.  Law 

J.  410. 

Decided  February  12,  1902. 

Carrying  Pistol:    Harmless  Condition  of  Weapon — Intent. 
The  carrying  of  a  pistol  from  which  the  accused  Intentionally  re- 
moved the  cylinder  rod  before  leaving  home,  for  the  purpose  of 
rendering  it  harmless,  Is  not  a  violation  of  law. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


rrr 


WHITE  V.  STATE. 


225 


Appeal  from  Denton  County;  Hon.  I.  D.  Ferguson,  Judge. 
Osoar   White,   convicted   of  unlawfully   carrying  a  pistol, 
appeals.    Reversed. 

Greenlee  &  Bradley,  for  the  appellant. 

Robert  A.  John,  Assistant  Attorney-General,  for  the  State. 

BuooKS,  J.  Appellant  was  convicted  for  unlawfiilly  carry- 
ing; a  ])ist<»l,  and  his  punishment  assessed  at  a  fine  of  $25. 

On  Sunday.*  January  (),  1901,  defendant  was  at  the  depot  in 
tlio  town  of  Denton,  and  had  in  his  possession  what  the  State 
witiK'ssos  called' a  pistol,  which  he  let  fall  on  the  ground,  as  ho 
was  running  after  Bradford.  He  picked  it  up,  and  put  it  in 
his  pdckot,  and  then  went  to  the  buggy  in  which  were  Ashby 
and  Mc'Culler,  and  showed  it  to  them,  and  tried  to  sell  them  a 
chance  in  a  raffle  which  he  was  making  up.  At  about  the  same 
tinu'  lie  luxd  the  pistol  in  a  stove,  trying  to  sell  chances  to  Sledge 
and  others,  and  at  a  restaurant,  also  trying  to  sell  chances.  He 
also  tried  to  sell  chances  in  the  raffle  to  various  other  parties, 
including  the  city  marshal.  But  the  evidence  shows  that  in 
each  instance,  before  taking  tlie  pistol  away  from  his  home  to 
oxliil)!t  to  such  persons  as  he  thought  would  buy  chances  in  the 
rattle.  lie  removed  the  cylinder  rod  from  the  pistol,  and  left  it  at 
home,  so  that  he  could  exhibit  it  without  violating  the  law.  All 
of  tlic  witnesses  testify  that  the  cylinder  rod  was  not  in  the 
pistol,  and  that  defendant  explained  to  them  that  he  removed 
the  rod  so  he  could  carry  and  show  it  to  prospective  purchasers 
of  chances  in  the  raffle  without  violating  the  law. 

After  the  appellant's  arrest  the  county  attorney  and  sheriff 
took  tlic  pistol,  and  found  that  by  placing  the  cylinder  in  posi- 
tion with  the  hands  it  could  1h'  made  to  shoot. 

One  witness  testified  that  it  would  lx>  dangerous  to  shoot  the 
pistol  without  the  cylinder  rod,  as  it  would  likely  split  the  b.^ll 
and  injure  the  person  firing  it. 

It  is  not  made  to  appear  that  appellant  knew  the  pistol  could 
be  made  to  shoot  without  the  cylinder  rod.  On  the  contrary, 
it  scorns  he  did  not  so  believe.  We  do  not  think  the  evidence 
nipports  the  verdict  of  the  jury,  since  there  can  be  no  violation 
of  law  unless  there  be  an  intention  to  do  the  thing  prohibited 
by  law.    If  appellant,  while  carrying  the  pistol  to  show  to  per- 

Vol.   XIII— 16 


■?  ' 


I 


226 


AMERICAN  CRIMINAL  REPORTS. 


sons,  who  might  buy  chances  in  tlie  raffle,  first  removed  the 
cylindei'  rod,  leaving  it  at  home,  and  believed  that  it  could  m.t 
be  made  to  shoot  or  used  as  a  firearm,  he  would  not  be  guilty  of 
unlawfully  carrying  a  pistol.  Lann  v.  State,  25  Tex.  App., 
497,  8  S.  W.,  650,  8  Am.  St.  Rep.,  445;  M^est  v.  Same,  21  Tox! 
App.,  427,  2  S.  W.,  810;  Underwood  v.  Same,  (Tex.  Cr.  App.) 
29,  S.  W.,  777. 

The  judgment  is  reversed,  and  the  cause  remanded. 


Wilson  t.  State. 


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—Miss.  — .  —33  So.  Rep.  171. 

Decided  January  5,  1903. 

Cabbying  Concealed  Weapons:  Constitutional  guaranty  does  not  pro- 
tect one  who  needlessly  carries  a  concealed  weapon  at  his  oivn 
home — Mere  possibility  that  a  witness  is  mistaken,  is  no  ground 
for  acquittal. 

1.  The  accused  claimed,   that  on   the  night  previous  to  carrying  a 

pistol  in  his  pocket  In  his  own  home,  there  was  a  disturbance 
among  the  chickens  on  the  premises,  and  that  one  or  two  of  them 
were  stolen,  and  that  a  night  or  two  before  some  person  liad 
broken  his  window;  but  no  connection  was  skown  between  these 
acts  and  nothing  showed  whether  the  window  was  broken  will- 
fully or  accidentally.  Held,  that  the  defense  did  not  come  within 
the  constitutional  guaranty,  to  keep  and  bear  arms  In  defense  of 
home,  person  and  property. 

2.  It  was  not  error  to  refuse  to  Instruct  the  jury,  that  accused  should 

be  acquitted,  if  there  was  a  possibility  that  the  only  witness  who 
saw  the  pistol  was  mistaken. 
• 
Appeal  from  Circuit  Court,  Alcorn  County ;  Hon.  E.  0, 

Sykes,  Judge. 

Jim  Wilson,  convicted  of  carrying  a  concealed  weapon,  ap- 
peals.   Affirmed. 

Lamh  &  Kiev,  for  the  appellant. 

William  Williams,  Assistant- Attorney  General,  for  the  State. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


m 


WILSON  V.   STATE. 


227 


Tekral,  J.  The  case  discloses  the  fact  that  Jim  Wilson  had 
carried  a  pistol  in  liis  pants  pocket  in  his  home  or  residence.  He 
attcMiipted  to  justify  his  action  under  section  12  of  the  Con- 
stitution, which  reads:  ''The  right  of  every  citizen  to  keep  and 
bear  iinns  in  defense  of  his  home,  person,  or  property  *  '*  * 
shall  not  be  called  in  question,  but  the  legislature  may  regulate 
or  forbid  carrying  concealed  weapons."  lie  proved  by  his 
own  (evidence  that  on  the  night  preceding  the  one  on  which  he 
had  the  pistol  in  his  pocket  at  his  own  home  there  was  a  dis- 
tiu'bance  of  the  chickens  of  his  sister,  who  lived  under  the  same 
roof,  when  he  thinks  one  or  two  of  the  chickens  were  taken.  lie 
further  stated  on  one  or  two  nights  before  that  somebody  broke 
ii  the  window.  Upon  this  vague  and  uncertain  evidence  counsel 
insists  that  his  client  is  protected  in  carrying  the  pistol  con- 
cealed by  section  12  of  the  constitution,  above  quoted.  It  is  to 
be  noted  that  the  stealing  of  even  one  chicken  on  the  night 
before  is  uncertainly  proved  by  the  witness.  The  breaking  of 
the  window  is  not  shown  to  have  had  any  connection  with  the 
disturbance  of  tlie  chickens,  nor  is  there  any  evidence  to  char- 
acterize the  breaking  of  the  window.  Whether  broken  acci- 
(leu tally  or  purposely  is  not  shown.  It  is,  in  our  view,  too 
indefinite  to  constitute  a  defense  of  any  sort.  Certainly  there 
is  nothing  in  the  evidence  that  squints  at  a  defense  under  the 
law  on  the  subject  of  carrying  concealed  weapons,  which  is 
unquestionably  constitutional.  The  only  witness  that  said  any- 
thiniii;  that  would  support  a  conviction  of  the  defendant  was 
Boll,  who  distinctly  said  he  saw  defendant  draw  his  pistol  from 
his  pocket;  and  the  fifth  instruction  requested  for  defendant, 
as  sliown  by  the  record,  was  that,  "if  there  was  a  possibility  that 
Bell  was  mistaken,  they  should  acquit  defendant,"  and  this  was 
refused.  Now  counsel  bases  his  argument  upon  the  supposition 
that  the  record  reads  "probability,"  instead  of  "possibility."  It 
is  unnecessary,  as  we  think,  to  decide  what  effect  the  use  of  the 
v.ord  "probability"  would  have  had  upon  the  case  if  that  word 
had  been  used  in  instruction.  Request  5  for  defendant  was 
rightfully  refused.  The  law  will  not  base  a  right  of  action  (»r 
defense  upon  mere  possibilities,  one  or  more. 

Affirmed. 


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223 


AMERICAN  CRIMINAL  REPORTS. 


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State  v.  Sims. 

80  Miss.  381—31  So.  Rep.  907. 

Decided  April  28,  1902. 

Deadly  Weai»on:    Meaning  of  the  term  deadly  weapon — Description 
of  weapon  in  indictment. 

1.  The  term,  deadly  weapon,  is  not  confined  to  those  weapons  enum- 

erated in  the  statute  as  deadly  weapons. 

2.  An  Indictment  for  assault  with  Intent  to  commit  murder,  which 

charges  that  the  assault  was  made  "with  a  certain  deadly  weajton 
towlt,  a  brick,"  and  that  the  defendant  did  feloniously,  eU\, 
"strike  and  wound,"  etc..  Is  sufficient;  without  more  particularly 
describing  the  manner  in  which  such  weapon  was  used. 

Appeal  from  Circuit  Court,  Chickasaw  County ;  Hon.  E.  0, 
Sykes,  Judge. 

Clink  Sims  indicted  for  an  assault  and  battery  with  intent  to 
murder,  demurred  to  the  indictment,  which  demurrer  was  sus- 
tained and  the  State  appealed.    Reversed. 

Monroe  McClurg,  Attorney  General,  for  the  State. 
L.  P,  Haley,  for  the  appellee. 

Tekral,  J.  The  appellee  was  indicted  for  assatilt  and  bat- 
tery with  intent  to  kill  and  murder.  The  indictment  witli  sjroat 
particularity  and  technicality  of  expression  averred  that  Clink 
Sims,  "in  and  upon  Shelley  Thompson  did  feloniously  iiiiikc 
an  assault  with  a  certain  deadly  weapon,  to  wit,  a  brick,  and 
Avith  said  brick  did  then  and  there  willfully  and  feloniduslv 
strike  and  wound  said  Shelley  Thompson,  with  the  willful  and 
felonious  intent  then  and  there  him,  the  said  Shelley  Tlnnnp- 
son,  willfully,  feloniously,  and  of  his  malice  aforethouirlit  to 
kill  and  murder,  against  the  peace  and  dignity  of  the  State  of 
Mississippi."  A  demurrer  to  the  indictment  was  sustained,  and 
counsel  for  appellee  argues  here  the  invalidity  of  the  indict- 
ment. 

If  we  understand  his  argument,  it  is  that  a  brick  is  not  a 
deadly  weapon,  because  it  is  not  mentioned  as  such  in  scctiMi 
1026,  Code  1892.    K'either  is  an  ax  or  a  hatchet,  a  shotgun  or 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
tills  volume. 


STATE  V.  SIMS. 


229 


rifle  mentioned  in  section  1026.    Nevertheless,  they  are  deadly 
won  pons.    In  all  cases  of  attempt  to  kill  with  a  deadly  weapon, 
the  indictment  ought  to  aver  that  the  instrument  used  was  a 
tleiuily  weapon,  except,  perhaps,  where  the  implement  used  is 
declared  a  deadly  weapon  by  statute,  and  unless  the  instrument 
is  described  by  law  as  a  deadly  weapon  it  should  appear  to  the 
jury  from  the  proof  to  be  one;  and  whether  it  be  one  or  not 
must  be  determined  by  the  proof,  of  which  the  jury  are  the 
judfies.    In  many  cases  proof  of  the  instrument  used  would  be 
suiKcient  proof  that  it  was  so,  without  further  evidence  on  that 
point.    In  Hamilton  v.  People,  113  111.,  38,  55  Am.  Rep.,  396, 
it  is  said  that  an  ax  or  a  hoe  is  per  se  a  deadly  weapon,  fully  as 
iiiiu'li  as  a  loaded  pistol.     The  brick  here  used  is  alleged  to  be 
a  deadly  weapon,  and  the  manner  of  its  use,  when  laid  before 
the  jury,  would  enable  them  to  decide  whether  or  not  it  was  a 
deadly  weapon.    The  most  usual  cases  of  felonious  assaults  that 
we  hear  of  are  those  made  by  pocket  knives,  which  are  not  men- 
tioned in  section  1026  of  the  Code,  and  it  has  never  been 
thiiufilit  that  such   indictments   are  defective  because   pocket 
knives  are  not  described  as  deadly  weapons  by  legislative  author- 
ity.   In  Spradley's  Case  (Miss.),  31  South.,  534,  the  implement 
used  was  a  grass  blade,  which  was  charged  to  be  ii  deadly 
weapon,  and  we  approved  the  indictment  there;  while  in  the 
case  of  James  Owens,  now  under  sentence  of  death,  the  instru- 
ment used  was  a  pocket  knife,  and  the  use  of  that  instniment 
was  considered  sufficient  to  support  a  conviction  for  murder. 
The  writer  has  known  an  old  and  feeble  woman  to  ho  convicted 
of  manslaughter  by  striking  with  a  penknife  a  strong  and  vig- 
orous man,  who  was  dragging  her  from  his  field,  because  the 
penknife  accidently  penetrated  a  vital  part  of  his  body.    If  the 
instrument,  whatever  it  be,  kills,  it  carries  strong  evidence  of  its 
being  deadly ;  and,  in  any  case,  it  is  for  the  jury  to  decide. 

The  counsel,  as  we  understand  him,  insists  that  the  manner 
in  wliieh  the  brick  was  used  should  be  set  out;  but  we  see  no 
more  reason  for  such  an  allegation  than  would  exist  in  the  case 
of  an  ax,  hoe,  pistol,  or  other  lethal  weapon.  Where  the  offense 
is  connnitted  with  a  deadly  weapon,  not  prescribed  such  by 
statute,  no  more  particularity  of  statement  is  necessary  than 
when  it  is  committed  by  the  use  of  a  weapon  declared  deadly 


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230 


AMERICAN  CRIMINAL  REPORTS. 


by  statute.     The  indictment  here  is  as  fully  particular  aiul 

technical  as  the  one  held  to  be  good  in  Spradley's  Case  (Aliss.) 

31  South.,  534.     When  a  deadly  weapon  is  not  used,  nud  a 

felonious  killing  or  assault  is  intended  to  be  alleged,  the  iik mis 

expressive  of  such  purpose  must  be  averred,  several  instiiiucs  (,f 

which  are  to  be  found  in  Wharton's  Precedents,  as  in  form  Xd. 

244.     If  one  person,  being  stronger  than  another,  should,  wiil, 

his  mere  fists  and  feet,  beat  and  stamp  such  other  person  np.in 

his  head  and  body  with  such  violence  and  long  continuation  tlmt 

death  therefrom  ensued,  there  the  violence  and  continued  luat- 

ing  should  be  alleged  as  a  means  of  conunitting  murder;  fur  a 

single  blow  with  fist  or  foot  could  not,  under  our  law,  siiitpovt 

a  conviction  for  a  felonious  assault.     The  indictment  here  is, 

we  think,  good  for  a  felonious  assault  and  battery. 

Reversed  and  remanded. 


Cosby  v.  Commonwealth. 

115  Ky.   221—24   Ky.  Law  Rep.  2050—72  S.  W.  Rep.  1089. 

Decided  March  19.  1903. 

Deadly  Weapon:    Character  of  weapon  and  its  use — Question  for  the 

jury — Instructions. 

1.  In  charging  the  Jury,  not  only  should  the  Court  submit  to  the 

jury  the  question  as  to  whether  the  weapon  used  was  deadly, 
but  should  also  instruct  the  jury  as  to  what  constitutes  a  deadly 
weapon  in  contemplation  of  the  law. 

2.  In   determining   whether   or  not  a   certain   weapon   is  a  deadly 

weapon,  not  only  the  nature  of  the  weapon,  but  the  manner  of 
its  use,  as  well  as  the  strength  of  the  person  using  it  should  be 
considered. 

3.  "A  deadly  weapon  Is  one  dangerous  to  life." 

4.  One  instruction  given  by  the  trial  court,  held  erroneous;  and  a 

form  suggested  for  future  use. 

Appeal  from  Circuit  Court,  Nelson  County. 
George  Cosby  convicted  of  maliciously  striking  and  wtiund- 
ing,  appeals.     Reversed. 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


COSBY  V.  COMMONWEALTH. 


231 


C.  T.  Atkinson,  for  the  appellant. 

Vliftun  J.  Pmtl  ami  M.  R.  Todd,  for  the  Commonwealth. 

Skttle,  J.  The  ai»pellant,  George  Cosby,  was  indicted  in 
the  Nelson  (circuit  Court  for  the  crime  of  unlawfully  auil 
ii.iiiic'iously  striking  and  wounding  one  Wm.  Gilky  with  a  club 
and  rock,  deadly  weapons,  with  the  intent  to  kill  him.  Upon 
the  trial  appellant  was  found  guilty  by  the  verdict  of  the  jury, 
iiinl  his  i)unishmet»t  fixed  at  confinement  in  the  penitentiary  for 
a  t(  rin  of  three  years.  A  new  trial  was  refused  him ;  hence  this 
appeal. 

The  lower  court  gave  five  instructions,  four  of  which,  viz., 
1,  L',  !},  and  5,  we  do  not  hesitate  to  approve,  as  they  fairly  and 
explicitly  sot  forth,  as  far  as  they  go,  the  law  of  the  case ;  hut 
we  are  unable  to  approve  instruction  No.  4  given  by  the  court, 
which  is  as  follows: 

"Hy  the  words  *a  deadly  weapon,'  as  used  in  these  instruc- 
tiiiiis,  U  meant  a  weapon  with  which  death  might  be  produced  in 
the  manner  in  which  defendant  used  the  club  and  rock,  or 
cither,  on  the  occasion  mentioned  in  the  indictment  (if  he  used 
ehil)  and  rock,  or  either,  on  said  occasion)." 

It  was,  of  course,  necessary  to  submit  to  the  jury,  as  was 
d(ine  in  instructions  1  and  2,  the  question  of  whether  the  instru- 
ments used  by  appellant  in  the  Striking  and  wounding  of  Gilky 
wore  or  not  deadly  weapons,  but  it  was  also  necessary  to  tell  the 
jury  in  those  instructions,  or  a  separate  one,  what  may  be  con- 
sidered a  deadly  weapon  in  the  meaning  of  the  law.  As  said 
bv  this  court  in  CommomveaUli  v.  Duncati,  91  Ky.,  595,  13  R., 
102,  10  S.  W.,  531 :  "The  statute  does  not  say  what  shall  con- 
stitute a  deadly  weapon.  It  merely  punishes  for  a  willful  and 
malicious  wounding  with  one.  If  one  man  maliciously  wounds 
another  with  a  rock,  with  which  he  might  have  killed  him,  there 
exists  no  reason  why  the  same  punishment  should  not  be  meted 
out  to  him  as  if  he  had  done  it  with  a  shotgun ;  and  undoubtedly 
the  Legislature,  in  enacting  this  statute,  so  intended.  Whether 
in  this  instance  the  rock  Avas  large  enough  to  produce  death, 
and  therefore  a  deadly  weapon,  should  have  been  left  to  the 
jury,  and  the  court  erred  in  taking  the  qvc"^":r.  from  them." 

This  court  has  never  adopted  a  form  of  instruction  defining 


pii,  j 
III 

I 


\  I  ,-(■■! 


232 


AMERICAN  CRIMINAL  REPORTS. 


i  !;■:!,; 


.  '■■ 


the  iiicnningof  the  words  "deadly  weapon,"  and  an  examinati(,;i 
of  tlie  opinion  in  the  case  supra  will  show  that  it  does  not  inidcr 
take  to  say  what  will  constitute  a  deadly  weapon  within  tlio 
iiicHiiing  of  the  statute,  but  simply  declares  that  ''under  a  staliite 
imiiiHliing  one  for  an  injury  with  a  deadly  weapon,  not  only  the 
character  of  the  weapon  used,  but  the  manner  of  its  use,  j.^ 
t't  1)0  considen d."  We  think  the  court  might  have  gone  fuitlior 
and  said  that  the  physical  strength  of  the  jx-rson  using  the 
ins.trument  or  wcai^n  is  also  to  be  considered  by  the  jury  in 
determining  whether  it  is  a  deadly  weapon.  A  deadly  wciiixin 
is  "one  dangerous  to  life."  A  rock  or  club  is  not  necessaiilv  i 
deadly  weaj)on,  but  may  be  made  so  in  the  hands  of  a  nuilicidus 
or  infuriated  person  of  ordimiry  strength,  if  used  in  an  attack 
n])on  another  with  intent  to  take  his  life.  It  will  be  observed 
that  instruction  No.  4  told  the  jury  that  "any  weapon"  is  dciidlv 
"••liicli  might  pro<luce  death,  if  used  in  the  manner  in  wliicli  the 
club  and  rock  were  used  by  appellant.  A  bar  of  iron  or  a  sl(d<>o 
hammer  might  easily  produce  death,  if  used  in  the  manner  in 
M'hich  the  club  and  rock  seem  to  have  been  used  by  appcdJant- 
but  the  question  to  be  determined  by  the  jury  was  not  wjiethor 
any  weapon  (such  as  a  bar  of  iron  or  other  Jioavy  instrument) 
might  produce  death  if  used  as  the  club  and  rock  were  nsed 
but  whether  the  latter,  considering  their  character  and  the  man- 
ner of  their  use,  might  have  produced  death. 

We  are  of  the  opinion  that  the  lower  court  should  have  given 
the  instruction  on  this  point  as  follows: 

"Tf  the  jury  believe  from  the  evidence  beyond  a  leasonahl? 
<l()ubf  that  the  club  and  rock,  or  either,  with  which  the  defend- 
ant struck  and  wounded  Gilky  (if  he  did  so  strike  and  \v(»nn;l 
him  with  a  club  and  rock,  or  either),  were  such  instruments  as 
were  reasonably  calculated  to  produce  death,  when  used  by  a 
]>erson  of  defendant's  physical  strength  an  .  in  tlie  nninner  in 
which  they,  or  either  of  them,  were  used  bj  him  on  the  oceasiou 
mentioned  in  the  indictment,  they  will  in  that  event  l)o  author- 
ized to  find  that  such  club  and  rock,  or  either,  are  deadly  weap- 
ons within  the  meaning  of  the  law." 

For  the  error  committed  by  the  lower  court  in  the  matter  of 
giving  instruction  No.  4,  the  judgment  is  reversed,  and  the 
cause  remanded,  with  directions  to  that  court  to  set  aside  th^ 


ffff 


ALBRIGHT    V.   TERRITORY. 


23:j 


verdict  of  the  jury  and  tlio  judgment  nnd  aontcnoc  entered 
thon<m,  and  to  grant  appellant  a  new  trial  in  conformity  to  the 
opinii'ii  herein. 
Whole  court  sitting. 

Norn.— In  State  v.  Hammond,  14  S.  D.  545,  86  N.  W.  Rep.  627,  the 
Coiiii  affirmed  an  order  for  a  new  trial,  but  In  closing  part  of  the 
opinion  said : 

"It  I.s  contended  on  part  of  the  defendant  that  the  Court  In  charging 
tlie  ji!iy  committed  error  in  submitting  to  the  Jury  the  question  aa 
to  wliotlier  or  not  the  stick  or  club  used  In  the  affray  by  the  defendant 
was  'a  dangerous  weapon*  without  explaining  to  the  jury  what  constl- 
tutcH  a  dangerous  weapon.  Wc  arc  of  the  cplnlon  that  the  Court  cor- 
rectly left  this  question  to  the  jury.  A  'deadly  weapon'  may  be  prop- 
erly (loaned  by  the  Court,  but  the  law  as  to  the  Court  defining  a  dan- 
geroiKs  weapon  is  not  so  v.ell  settled.  In  Bouvler's  Law  Dictionary 
(Rawlc's  Revision),  a  dangerous  weapon  is  thus  spoken  of:  'One  dan- 
gerous to  life.  This  must  often  depend  upon  the  manner  of  using  it, 
and  the  question  should  go  to  the  jury.'  Mr.  Anderson,  In  his  Law 
Dictionary,  says:  'In  many  cases  the  Court  may  declare  that  a  par- 
ticular weapon  was  or  was  not  a  dangerous  weapon;  and,  when  prac- 
ticable, it  is  the  Court's  duty  to  do  so.  But  where  the  weapon  might 
be  dangerous  or  not,  according  to  the  manner  in  which  It  was  used 
or  the  part  of  the  body  struck,  the  question  must  be  left  to  the  jury.' 
V.  H.  V.  Small,  2  Curt.  243,  Fed.  Cas.  No.  16,314;  State  v.  Dineen,  10 
Minn.  Ill  (Gil.  325);  Doering  v.  State,  49  Ind.  58,  19  Am.  Rep.  CC9. 
It  Is  quite  clear  In  the  case  at  bar  that  the  Instrument  used  in  mak- 
ing the  alleged  assault  was  of  such  a  character  that  the  court  could 
not  say,  as  matter  of  law,  whether  it  was  or  was  not  a  dangerous 
weaptn.  We  are  of  the  opinion,  therefore,  that  the  Court  vOry  prop- 
erly left  the  matter  to  tho  jury.  The  order  of  the  Circuit  Court  grant- 
ing a  uew  trial  is  affirmed" 


ALunionT  V.  Teuuitouy. 

11  Okla.  497—69  Pac.  Rep.  789. 

Decided  July  16,  1902. 

Homicide:    Local  jurisdiction  in  homicide,  is  tchcre  the  cause  of  death 

was  inflicted;  place  of  death  immaterial. — Indictment. 
1.  A  person  charged  with  the  commission  of  the  crime  of  murder  must 


For  rases  in  previous  volum*  on  any  subject,  see  Table  of  Topics  la 
this  volume. 


'   lllf.'  ', 


n 


(("■rK-M 


m 


234  AMERICAN  CRIMINAL  REF0RT3. 

be  indicted  and  tried  In  the  county  where  the  injury- which  caused 
the  death  was  Inflicted,  and  it  is  not  necessary  to  allege  the  place 
of  death. 

(Syllabus  by  the  Court.) 

Error  to  District  Court,  Payne  County ;  Justice  B.  F.  Bur- 
well. 

Vagcl  II.  Albright,  convicted  of  murder,  brings  error. 
Affirmed. 

Loii-ry  tC  Workman,  C.  B.  Case,  and  A.  J.  Biddisi,n,  foi- 
plaintiff  m  error. 

J.  C.  Roberts,  Attorney  General,  and  C,  L.  Burdlek,  ior  tlio 
Territory. 

IIai.nkk,  J.  The  plaintiff  in  error,  Vagel  II.  Alln-iyiit  was 
indicted  in  fhe  District  Court  of  Payne  County,  on  the  chiirirc  of 
the  murder  of  William  G.  Tribble  in  Payne  County  on  .July 
IG,  1900,  and  was  convicted  of  manslaughter  in  the  first  (Ici-nc 
and  seuteiK'fd  to  serve  a  term  in  the  penitentiary  for  a  period 
of  foui'  year-!.     From  this  judgment,  the  defendant  appeals. 

Tliere  is  but  one  question  argued  by  counsel  for  plaintiff  in 
error,  and  that  is  the  sufficiency  of  the  indictment  in  lliis  ease. 
It  is  contended  that  the  indictment  in  this  case  is  defective  in 
not  alleging  the  jdace  of  the  death  of  the  person  killed,  niul  that 
such  alhgatinn  is  material,  and  necessary  to  constitute  a  suffi- 
cient indictment. 

The  indictment  in  this  case  is  as  follows: 

*'0f  the  Sej)tend)er  term  of  the  District  Court  of  the  First 
Judicial  District  of  the  Territory  of  Oklahoma,  within  and  f(ir 
Payne  County,  in  said  Territory,  in  the  year  of  our  Lnnl  one 
thousand  nine  hundred,  the  grand  jurors,  having  Ik  en  first  (hily 
chosen,  selected,  impaneled,  sworn,  and  charged  to  iiKpiire  of 
ofTtiises  against  the  laws  of  the  Territory  of  Oklahnnia.  eoni- 
mitted  Avithin  said  county,  in  the  said  Territory  of  Oklalmma, 
upon  the  ir  oathe  aforesaid,  in  the  name  and  by  the  authi  riry  of 
the  Territory  of  Oklahoma,  do  find  and  present:  That  at  and 
within  said  Payne  County  in  said  Territory,  on  the  Kith  diy 
of  July,  in  the  year  of  our  Lord  one  thousand  nine  hundred, 
Vagel  IT.  Albright,  late  of  the  county  aforesaid,  on  the  Idth 
day  of  July  in  the  year  of  our  Lord  one  thousand  nine  IniinhTd, 
in  the  County  of  Payne  and  Territory  of  Oklahoma,  aforesaid, 


ALBRIGHT    v.    TERRITORY. 


235 


then  iind  there  being,  did  then  and  there  wnlawfully,  purposely, 
feloniously,  maliciously,  and  with  a  premeditated  design  to 
effect  the  death  of  William  G.  Tribble,  make  an  assault  in  and 
upon  the  person  of  him,  the  said  William  G.  Tribble,  and  the 
said  \'agel  11.  Albright,  a  certain  gun  then  and  there  loaded, 
and  charged  with  gunpowder  and  leaden  bullets,  which  said 
|iuii  lu',  the  said  Vagel  II.  Albright,  in  his  hand  then  and  there 
had  ;mil  held,  to,  against,  and  upon  the  said  William  G.  Tribble, 
(hen  iiiul  there  unlawfully,  purposely,  feloniously,  maliciously, 
and  with  ])remeditated  design  to  effect  his  death,  did  shoot  and 
(liscluirgo;  and  the  said  Vagel  H.  Albright,  with  the  leaden 
bullets  aforesaid,  out  of  the  gun  aforesaid,  then  and  there  by 
force  of  the  gun|)owder  shot  and  sent  forth  as  aforesaid,  the  said 
Williiiiii  G.  Tribble  then  and  there  unlawfully,  purposely, 
fell  111  idusly,  maliciously,  and  with  a  premeditated  design  to 
effect  his  death,  did  strike,  penetrate,  and  wound,  giving  to 
the  s;ii(l  William  G.  Tribble,  then  and  there,  with  the  leaden 
bullets  aforesaid,  so  as  aforesaid  shot,  discharged,  and  sent  forth 
out  of  said  gun  by  the  said  Vagel  11.  Albright,  in  and  upon 
the  left  breast  of  said  William  G.  Tribble,  one  mortal  wound, 
of  which  said  mortal  wound  the  said  William  G.  Tribble,  in- 
stantly after  the  same  had  been  inflictetl  as  aforesaid,  did  die, 
on  the  said  10th  day  of  July,  in  the  year  aforesaid,;  and  the 
grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that 
the  said  William  (i.  Tribble,  the  said  Vagel  II.  Albright,  in 
wanner  and  form  aforesaid,  unlawfully,  purposely,  feU)niously, 
maliciously,  and  with  a  ])remeditated  design  to  effect  his  death, 
(lid  kill  and  murder,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of 
the  Ti  ri'itory  of  Oklahoma." 

At  common  law,  the  place  of  death  was  an  essential  allega- 
tirii  in  the  indictment.  It  was  a  material  averment  in  the 
iiidictiiK  nt  to  confer  j\irisdiction.  But  this  rule  of  common  law 
has  lieen  modified  not  only  by  our  statute,  but  by  the  organic 
act  .d'  this  Territory.  Section  41)41)  of  the  Statutes  of  1893 
pruvid(  s  as  follows: 

"The  jurisdiction  of  an  indictment  for  murder. or  man- 
slaughter, when  the  injury  which  caused  the  death  was  inHioted 
ill  one  county,  and  the  party  injured  dies  in  another  county,  or 
out  <d  the  Territory,  is  in  the  county  where  the  injury  was 
inflicted." 


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236 


AMERICAN  CRIMINAL  REPORTS. 


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And  section  10  of  our  organic  act  provides  that: 
**A11  oifonses  comniittod  in  said  Territory,  if  committed 
within  any  organized  county,  shall  be  prosecuted  and  iricd 
within  said  county,  and  if  committed  within  territory  not  ciii- 
hraced  in  any  organized  coi.nty,  shall  he  prosecuted  ami  irjod 
in  the  county  to  which  such  territory  shall  be  attached  I'di- 
judicial  purposes." 

It  will  thus  bo  seen  that  by  the  ])rovisions  of  our  organic  act, 
as  well  as  tli(>  clear  an<l  unmistakable  terms  of  our  statute,  a 
person  charged  with  the  coiiiiriission  of  the  crime  of  imirdcr 
must  bo  indicted  and  tried  in  the  county  where  the  injury  wliicli 
caused  the  death  was  inHicted,  and  it  is  not  necessary  to  allf^c 
the  place  of  death.  Kansas  has  a  similar  statute.  And  in 
])assing  u])on  this  same  (piestiim  the  Supreme  (.'ourt  of  thiit 
State,  in  the  case  of  Slate  r,  liowcn,  1(5  Kan.  470,  said: 

"An  information  for  murder  is  sutlicient  which  charges  tlic 
giving  of  the  fatal  blow  in  the  county  in  which  the  ])roscciiti(pii 
is  hiul,  and  the  fact  of  ensuing  (h-ath,  although  it  liiilcd  \n 
allege  specitically  in  what  county  or  State  the  death  took  phicc" 
Mr.  flustice  lirewer,  in  discussing  this  subject,  said; 
"It  is  claimed  that  the  information  is  insufficient  in  tluit  it 
fails  to  allege  the  |)lac('  of  the  death.  It  charges  that  on  tlic 
10th  of  October,  1S74,  at  the  county  of  Wilson,  the  detVniliuit 
inflicted  two  mortal  wounds  u])on  John  Iloppeler,  of  wliicli 
womids  the  said  Iloppeler  afterward,  and  on  October  1.').  IsTl, 
died,  but  it  does  not  charge  tluit  he  died  in  Wilson  connlv,  or 
in  the  State.  Hence  it  is  said  that,  as  the  offense  of  murder  or 
manslaughter  is  consummated  only  by  \\w  death  of  tlic  party 
assailed,  the  place  of  the  death  is  as  important  as  the  place  of 
the  assault,  and  that  a  failure  to  alUgc  the  one  is  as  fatal  as  a 
like  failure  to  allege  the  other.  Waiving  any  question  as  to  the 
effect  of  the  second  clause  of  section  1 10  of  the  Criminal  ('(ide 
(Gen.  St.  ]).  8;><S),  and  conceding,  that  except  upon  a  straiiud 
and  unnatural  construction,  there  is  no  allegation  as  to  the  place 
of  lIop])('!er's  death,  we  still  think  the  information  niusi  he 
snstaineil.  Jt  docs  not  ajjpcar  that  any  question  was  rais<d  in 
the  histrict  Court  as  to  the  sufliciency  of  the  information.  The 
defend.ani  pleaded  'Not  guilty,'  and  went  to  trial  upon  it.  I'er- 
hai)s  lliis  is  immaterial,  and  the  defendant  has  waived  nolhiiii;. 
There  has  been  much  confusion  and  conflict  as  to  the  jurisdic- 
tion and  power  to  punish  in  cases  in  which  the  fatal  blow  is 


\m 


'f  rr 


ALBRIGHT    v.    TERRITORY. 


237 


£rivon  ill  ono  coimty  or  State,  and  death  ensues  in  another  county 
(,r  fStiitc.  So  far  as  counties  are  concerned,  the  statute  settles 
all  question.  Gen.  St.  p.  824,  §  29.  It  is,  however,  silent  as 
'  '■:'  (s  in  which  the  wound  is  given  outside  the  State,  and 
.,  imIi  (  n<ucs  within,  or  the  reverse.  In  Slate  v.  Carter,  27  N.  J. 
Law,  (.')  Dutch.)  490,  the  i)o\ver  of  the  State  to  punish  was 
(loiiie'l  in  a  case  where  the  fatal  hlow  was  given  in  New  York, 
ami  '  ired  party  voluntarily  came  into  Xew  .Jersey,  and 

there  nii  d.  Ou  the  other  hand,  the  power  was  sustained  under 
siniiliir  circumstances  in  the  easels  of  Tyler  v.  People,  8  ^lich. 
;'.2<i.  and  Com.  v.  Mac/oon,  ^n\  Ma?s.  i,  100  Am.  J)ec.  89,  in 
vvhi'  h  last  case  is  a  very  full  and  exhaustive  examination  of 
rlio  Miithorities,  English  and  American.  In  the  case  in  8  iVIich. 
is  a  (ii^.senting  opinion  by  Judge  Caniphell,  whose  judgment  in 
criiiiinal  (piestions  is  entitled  to  the  highest  consideration,  in 
which  he  holds  the  law  to  l)c,  in  the  absence  of  statute,  that 
jurisdiction  to  ])unish  for  the  homicide  is  in  the  State  and 
coiiiily  in  which  the  fatal  blow  was  struck.  In  Riley  v.  Hitale, 
l»  iliiiii|ih.  (!4(>,  the  Supreme  Court  of  Tennessee  decided  that 
accimliug  to  the  principles  of  common  law,  where  the  fatal  bhnv 
was  ^iveii  in  one  county,  and  death  ensued  in  another,  jurisdic- 
tidii  (if  the  homicide  was  in  the  tirst  county.  In  8late  v.  McCoy, 
B  Koh.  ."')4r>,  41  Am.  Dec.  301,  followed  in  Hlate  v.  Fader,  7  La. 
Ann.  iT)."),  and  same  case  in  8  La.  Am!.  2!M),  58  Am,  Dec.  078, 
the  Supreme  Court  sustain(~d  the  jurisdiction  where  the  fatal 
hlow  Wiis  given  within,  but  death  ensued  without,  the  State. 
Tliev  rested  their  d(H'ision,  however,  it  should  Im  said,  upon  an 
act  of  the  Legislature  of  180.^>,  adopting  the  connnon  law  of 
Enghnid,  which  they  construed  as  including  a  statute  of  2  Geo. 
II  upon  this  matter.  In  The  People  v.  (Jill,  0  Cal.  (!.'}7,  where, 
intermediate  the  blow  ami  the  death,  a  change  in  tlie  statute  had 
ken  made,  the  crime  was  hehl  to  l)e  of  the  date  of  the  blow, 
and  piverned  by  that  law.  See,  also,  Grosvenor  v.  Inhabitants 
of  SI.  AiKjadine,  12  East.  214;  1  Bish.  Cr.  Law,  §§  112,  110; 
1  I)ish.  Cr.  Proe.  51,  52,  ajid  cases  cited  on  both  sides  of  the 
(jucstiou.  It  seems  to  us,  without  pursuing  the  authorities 
further,  reasonable  to  lutld  that,  as  the  only  act  which  the 
defendant  does  toward  causing  the  death  is  in  giving  the  fatal 
blow,  the  })lace  where  he  does  that  is  the  place  where  he  ccm- 
r,iits  the  crime,  and  that  the  subsecpient  wanderings  of  the 
injurid  party,  uninlluenced  by  the  defendant,  do  not  give  an 


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238 


AMERICAN  CRIMINAL  REPORTS. 


H.  >ia 


'i'. 


anibiilatory  character  to  the  crime;  at  least  that  those  nidvc- 
niciits  do  not,  unless  under  express  warrant  of  the  stittiiro, 
clianee  the  place  of  offense;  and  that,  while  it  may  be  true  tlmt 
the  crime  is  not  completed  until  death,  yet  that  the  death  simiilv 
determines  the  character  of  the  crime  committed  in  giving  rho 
blow,  and  refers  hack  to  and  qualities  that  act." 

The  Supreme  Court  of  Washington,  in  the  case  of  Stale  ;•. 
Baldwin,  45  Pac.  050,  in  construing  a  similar  statute,  held  tlmt 
in  an  infonnation  for  murder,  which  alleges  the  time  and  jilaco 
where  the  offense  was  committed,  it  is  not  necessary  to  allege 
also  the  place  of  death,  under  the  law  of  that  State,  which  pv<i- 
vides  for  the  trial  of  criminal  actions  in  the  county  where  the 
offense  has  In-en  committed. 

We  think  that  the  indictment  sufficiently  alleges  that  the  de- 
ceased was  shot  and  killed  in  Payne  County;  but,  even  if  it  did 
not,  under  the  provisions  of  our  organic  act  and  the  statutes  df 
this  Territory,  an  indictment  for  murder  is  sufficient  wliicli 
charges  that  the  injury  which  caused  the  death  was  inflictdl 
in  the  county  in  which  the  prosecution  is  had,  and  it  is  nut 
necessary  to  specifically  allege  the  place  of  death.  The  deuimror 
to  the  indictment  was,  therefore,  properly  overruled. 

There  being  no  error  in  the  record,  the  jmlginent  of  the  Dis- 
trict Court  of  Payne  County  is  affirmed.  The  clerk  of  this  eniii't 
will  issue  a  mandate  to  fhe  District  Court  of  Payne  Cdimty 
directing  the  sheriff  of  said  county  to  enforce  the  judgniciit  nf 
the  13istrict  Court. 

BuKWKLL,  J.,  who  presided  in  the  court  below,  and  Euui-oun. 


C.  J.,  not  sitting, 
concurring. 


luwix,  J.,  absent.     All  the  other  justices 


Note  (By  J.  F.  G.). — According  to  the  indictment  It  would  appear 
tiiat  the  accused  and  the  deceased  were  both  in  the  Territory  of  Olda- 
homa  at  the  time  the  fatal  shot  was  fired,  resulting  in  instantin-nus 
death.  The  indictment  charges  that,  the  accused,  with  a  prenieiliiatcd 
design  to  kill,  did  assault  and  wound  William  G.  Tribble,  "giving  to  the 
said  William  G.  Tribble,  then  and  there,  with  the  leaden  bullet  afore- 
said, so  as  aforesaid  shot,  discharged,  and  sent  forth  out  of  the  said  g\in 
by  the  said  Vagel  H.  Albright,  in  and  upon  the  left  breast  of  (he  said 
William  G.  Tribble  one  mortal  wound,  of  which  said  mortal  wmind 
the  said  William  G.  Tribble,  instantly  after  the  said  had  bsen  indicted 
cs  aforesaid,  did  die,  on  the  said  16th  day  of  July,  in  the  year  afore- 
said." It  may,  however,  be  claimed,  that  the  word  instantly  is  sr.me- 
what  elastic,  and  would  cover  a  very  short  period  of  time,  in  which  the 


ALBRIGHT    V.    TERRITORY. 


239 


victim  might  have  been  removed  Into  another  jurisdiction,  and  hence 
give  occasion  for  the  above  opinion.  Be  that  as  it  may,  the  conclusion 
of  the  court  was  right. 

The  precedent  set  in  the  above  opinion  is  more  applicable  to  that 
class  of  cases,  where  a  criminal  assault  was  committed  within  one 
jurisdiction,  and  the  victim  lingers  for  a  period  of  hours  or  days,  and 
dies  in  another  Jurisdiction.  In  such  a  case  the  criminal  assault  is 
complete  within  the  jurisdiction  where  It  was  committed,  and  the 
punishment  depends  upon  the  results  of  that  completed  act.  It  would 
be  absurd  to  inflict  the  punishment  for  murder,  because  of  an  assault, 
which  might  have,  but  did  not,  result  in  death;  so  it  would  be  equally 
absurd  to  hold  that  a  deliberate  killing  of  a  human  being  would  not 
be  murder,  simply  because  death  was  not  the  instantaneous  result  of 
the  criminal  assault.  The  theory  of  law  Is,  that  the  completed  act 
may  for  a  time  be  simply  an  assault,  and  punishable  as  such,  but  upon 
the  death  of  the  victim,  it  ripens  into  the  crime  of  murder  or  man- 
slaughter. This  transformation  is  simply  a  result,  and  not  in  any 
sense  a  new  act  on  the  part  of  the  accused.  In  such  case  the  act  of 
the  accused  at  the  time  it  was  committed,  was  In  violation  of  the  law 
of  the  jurisdiction  in  which  It  was  committed;  and  being  a  completed 
act  cannot  be  in  violation  of  the  law  of  some  other  jurisdiction,  simply 
because  of  a  removal  of  the  victim  into  that  jurisdiction  before  death. 

To  hold  that  in  such  case,  the  accused  would  be  subject  to  the  laws 
of  the  jurisdiction  where  death  ensued,  would  make  it  optional  with 
the  defendant  whether  or  not  he  would  accept  punishment  for  the 
crime.  I'nder  the  inter-state  extradition  laws,  a  criminal  cannot  be 
(arried  into  a  State  from  which  he  has  not  fled;  hence,  a  criminal 
cannot  be  forced  to  leave  the  State  where  the  act  was  committed  to 
answer  an  indictment  in  another  State  where  the  victim  died. 

If  the  jurisdiction  follows  the  victim  and  rests  in  the  State  where 
he  dies,  then  a  crime  that  was  capital  in  the  State  where  origlually 
and  actually  committed,  may  cease  to  be  capital,  by  this  shifting  of 
the  jurisdiction;  or  the  crime  that  was  not  a  capital  one  In  the  State 
In  which  It  was  committed,  might  become  such  by  this  removal  of 
the  victim  to  another  State. 

If  the  punishment  does  not  depend  upon  the  law  of  the  place  and 
time  of  the  act,  but  upon  the  law  of  the  place  and  time  of  the  victim's 
death,  then  a  new  law  might  be  made  to  cover  the  case,  for  it  would 
not  be  ex  post  facto  if  the  time  of  death  was  the  criterion. 

The  writer  has  in  mind  quite  a  number  of  decisions  on  this  sub- 
ject, but  as  the  question  is  too  plain  for  serious  argument,  and  the 
prlntt'r  la  waiting  for  manuscript,  but  one  case  will  be  referred  to, 
viz.,  that  of  Guiteau  (1  Mackey  498,  47  Am.  Rei).  247),  who  shot 
President  Garfleld  in  the  District  of  Columbia.  The  Ptewident  was  con- 
veyed outside  of  that  jurisdiction  and  died.  Guiteau  was  tried,  con- 
victed and  executed  In  the  District  of  Columbia. 

See  also,  State  y.  Smith,  the  next  case  in  this  volume. 

This  question  should  not  be  confounded  with  that  class  of  cases  in 


|- ;,(,■■ 


I '  j 


'i\ 


;;  \l 


U 


240 


AMERICAN  CRIMINAL  REPORTS. 


which  the  criminal,  while  being  In  one  Jurisdiction,  shoots  and  kills 
a  person  in  another,  for  In  such  a  case,  the  killing  In  the  other  Stato 
is  a  part  of  the  criminal  act  on  the  part  of  the  person,  shooting  from 
one  State  into  another. 


■  if. 


tl'l 


II !  I 


'i- 


J    ''■ 


t    i  I 


State  v.  Smith. 

78  Minn.  3C2— 81  N.  W.  Rep.  17. 

Decided  December  15,  1899, 

Homicide — MAN:?LAUr.iiTER:  Distinction  betivccn  murder  in  the  second 
degree  and  manslaughter — Place  of  death  not  jurisdictional— 
Competency  of  jurors,  by  consent,  tried  by  the  court — 'Non-pre- 
judicial corroboration  of  State  witnesses — State  witnesses  not 
called  by  the  prosecution — Evidence  sufjicient, 

1.  Held,  that  the  record  shows  that  the  defendant  consented  to  the  trial 

by  the  court  of  challenges  to  jurors  for  actual  bias. 

2.  The  indictment  construed  as  one  for  manslaughter  in  the  first  de- 

gree, and  not  for  murder  In  the  second  degree.  The  words  "will- 
fully killed"  are  not  the  equivalent  of  "with  a  design  to  effect 
death." 

3.  The  admission  in  evidence  of  the  results  of  experiments  tending  to 

corroborate  the  testimony  of  witnesses  for  the  State  that  they  saw 
and  heard  certain  things  from  a  particular  position,  held  not  i)re- 
judlclal  error,  for  the  reasons — First,  that  the  experiments  tended 
to  prove  nothing  that  was  not  self-evident  fro'"  photographs  and 
measurements  already  in  evidence;  and,  seconil,  that  an  attompt 
had  been  made  to  imi)each  the  witnesses  by  eliciting  on  their  cicihs- 
exaniinatlon  facts  tending  to  show  that  they  could  not  have  seen 
and  beard  what  they  testified  to  from  the  position  which  they  oc- 
cupied. 

4.  The  State  is  not  required  to  call  and  examine  as  its  witnesses  all 

'persons  whose  names  are  Indorsed  on  the  indictment.  The  most 
that  was  ever  required,  in  any  event,  was  that  they  be  proKoiU  in 
court,  80  that  the  defendant  may  call  and  examine  th^ni  if  he 
desires. 
B.  The  general  doctrine  of  the  courts  now  is  that,  the  reason  having 
ceased,  the  old  rule  has  ceased,  that  on  trials  for  felony  the  prose- 
cutor is  bound  to  call  a"d  examine  all  the  eyewitnesses  of  the  res- 
gestae  or  transaction.  But,  without  deciding  this  question,  held 
that,  in  this  case,  the  court  was  justified  in  refusing  to  require  the 
State  to  call  certain  parties  as  witnesses,  because  It  did  not  apiioar 
that  they  were  eyewitnesses  of  the  transaction  which  was  the  sub- 
ject of  investigation. 


For  cases  In  previous  volumes  on  any  subject,  see  Tabie  of  Topics  la 
this  volume. 


STATE  V.  SMITH. 


241 


C.  The  evidence  held  sufficient  to  justify  the  verdict 
(Syllabus  by  the  Court.) 

Additional  Syllabus  by  J.  F.  G. 
An  Indictment  which  charge^  that  the  fatal  blow  was  struck  within 
the  State  of  Minnesota  and  that  death  ensued  In  the  State  of  North 
Dakota,  If  otherwise  sufficient,  charges  a  homicide  within  the  jurisdic- 
tion of  the  State  of  Minnesota. 

Appeal  from  District  Court,  Kittson  County ;  Hon.  Williaiu 
Watts,  Judge. 

John  Smith,  convicted  of  manslaughter,  apfjieals.     AiRrmed. 

//.  Slccnerson  and  E.  C.  Yetter,  for  the  appellant. 

ir.  B.  Doughs,  Attorney  General,  R.  R.  Iledenhcrg,  County 
Attorney,  and  James  A.  Peterson,  for  the  State. 

iriTt;iiKLT>,  J.  The  defendant  was  convicted  of  manslaughter 
in  tlie  second  degree,  upon  the  following  indictment: 

"John  Smith  is  accused  l>y  the  grand  jury  of  the  County  of 
Kittson,  in  the  State  ai  Minnesota,  by  this  indictment,  of  the 
crime  of  manslaughter  in  the  first  degrcH^,  committed  as  follows: 
The  said  tlohn  Smith,  on  the  8th  day  of  March,  A.  1).  1805),  at 
tlie  village  of  St,  Vincent,  in  the  County  of  Kittson  and  State  of 
^linncsotii,  did  then  and  there  willfully,  xmlawfully,  and  feloni- 
ously, and  in  the  heat  of  passion,  and  in  a  cruel  and  unusual 
manner,  kill  a  human  '.eing,  tt)-wit:  one  George  Bates,  by  then 
and  tliere  striking  him,  the  said  (ieorge  Bates,  with  a  blunt  and 
dangerous  wcsapon,  a  more  particular  description  of  which 
weapon  is  to  the  said  grand  jury  unknown,  then  and  thereby 
iutiicting  upon  the  head  of  him,  the  said  George  Bates,  wounds, 
fr(»m  which  wounds  tlie  said  George  Bates  died,  at  the  village 
(if  I'embimi,  in  the  County  of  Pembina,  State  of  North  Dakota, 
on  the  Dth  of  March,  A.  D.  isit'.i ;   contrary,"  etc. 

1.  The  first  assiunm<  lit  of  ernu'  is  that  tlte  court  iTrinl  in 
trying  the  challenge  to  one  of  the  jurors  for  actual  bias.  Tlie 
following  is  all  that  the  ryvv>rd  contiiius  relating  to  this  point: 

"Kd.  (  hase  challenmnl  for  actmil  bias.  Challenge  diMiu'd. 
[Then  fnlliiws  thv^  I'xamination  (»f  juror  upon  the  cause  of  the 
challenge.  ',     Challenge  submitted.     S\istained  by  the  court." 

Til  is  can  admit  of  but  one  reasimable  construction,  viz.  that 
iiu  triors  were  appointed,  and  l)oth  parties  consented  that  the 
challenge  should  be  tried  by  the  court,  which  may  be  done  in 
cases  not  capital.    G.  S.  18t)4,  §  7374. 

Vol.   XIII— 16 


\v 


ft 


^i; 


II 


I  ; 


■|  'in 

m 


mil 


flil-    =i 


; '^;'' 111 


J I 


>'ri 


if. 


9.10 


AMERICAN  CRIMINAL  REPORTS. 


2.  The  sccoiul  flssignniciit  is  that  the  court  crrrd  in  dis- 
allowliig  (Icfi'iuhmt'.s  sixth  poroinptory  challeii^'o.  The  correct- 
ness of  the  ruling'  depends  n])on  the  question  whether  the  indict- 
ment charges  nuinshiughter  or  niunh-r  in  the  first  or  second 
degree,  tiiey  being  thi;  oidy  two  crimes  in  wliieh  the  defen<laiit 
is  entitiiMJ  to  more  than  five  ])ereniptorv  challenges.  It  is  iidt 
and  couhl  not  Ik;  churned  that  the  indictment  charges  mnr(Kr  in 
the  tirst  (h'gree.  Tiio  on.y  definition  of  murder  in  the  second 
degree  having  any  Ix-aring  on  the  present  case  is: 

"Such  killing  of  a  human  being  is  murder  in  the  second 
degree  when  conunitted  with  a  design  to  efTect  tiie  death  of  tlic 
person  killetl  or  of  another,  but  without  d(diberation  and  pre- 
meditation."   G.  S.  1894,  §(;438. 

Counsel's  argument  on  this  jxdnt  is  wholly  based  on  the 
peculiar  language  of  the  indictment,  wliich  it  must  iw  admitted 
is  not  in  the  most  ap|)roved  form.  They  argue  that  •Svilifully 
killed"  means  the  same  as  "with  a  design  to  effect  death."  In 
criminal  law,  at  least,  the  one  is  not  the  equivalent  of  the  other. 
A  man  nniy  willfully  do  an  act  which  causes  death,  ajid  yet  have 
no  design  to  effect  death. 

3.  TUo  next  assignment  is  that  the  court  erred  in  overruling 
defendant's  objection  to  any  testimony  iK'ing  introduced  under 
the  indictment,  "for  the  reason  that  the  same  did  not  state  a 
])ul)lic  offense,  and  alleges  an  impossible  charge."  This  is  based 
on  a  mere  verbal  criticism  on  the  allegations  as  to  dates.  In  con- 
templation of  law,  the  defendant  committed  the  crime  in  this 
State  on  the  8th,  although  the  deceased  died  in  the  State  of 
North  Dakota  on  the  Dili,  of  the  month.  The  crime  was  com- 
mitted in  this  State.    Sf.alfi  v.  Gasscrf,  21  ]\Iinn.  ;3('.9. 

4.  On  the  trial  the  State  introduced  as  witiu'sses  two  young 
women,  who  on  the  night  of  flu;  alleged  homicide  occupied  a 
room  in  the  second  story  of  a  hottd  distant  alxmt  ."iT  feet  from 
defendant's  saloon  (near  which  the  de<'eased  received  the  in- 
juries of  which  he  died),  and  Avho  testified  tjjat,  on  iicing 
awakened  by  the  noise  outside,  they  h'oked  out  of  a  ventilator 
in  the  storm  window,  and  saw  and  heard  an  altercation  and 
scuflle  between  two  men  on  the  sidewalk,  the  voice  of  one  of 
whom  they  recognized  as  that  of  the  defendant.  One  of  the 
evident  ])urposes  of  the  cross-examination  of  these  wit  ;esses  was 
to  imjieach  their  testinumy  by  eliciting  facts  tending  to  show 
that  they  C(juld  not  have  seen  or  heard  what  they  claimed  to 


STATE  V.  SMITH, 


243 


hnvc  tlono  fvoni  llicir  position  nt  the  window.  Tlioro  avjis  also 
iiitn  1(1  need  in  ovidcnco  a  photograph  of  the  locus  in  (juo,  acconi- 
jiiiiiic'd  by  nioasnrmients  of  the  distances  botwccn  the  varioiH 
I'diiits  rcforrod  to  in  the  testimony  of  tlie  yonnp^  women.  Tlio 
SliiK^  then  introdnccd  j'  witness  wIjo  liad  made  two  experimcuta 
to  Msccrtain  how  far  and  wliat  points  he  conhl  see  from  this 
siiiiii*  window,  and,  afjainst  the  ohjection  of  the  defen(hint,  was 
allowed  to  testify  as  to  the  resnlts,  which  tcjided  to  corroborate 
llic  t(..tim(iny  of  the  yonnj^  women  as  to  what  they  saw  ami 
licanl.  One  of  these  experiments  was  made  a  few  days  aft(>r 
the  iilleju;ed  liomicide,  by  lodkiiig-  throu};h  the  ventilator  in  the 
outer  or  storm  window,  pnH'isely  as  tlw.-  yonnj":  women  testilied 
to  li.iving  done.  1'lie  other  was  nuide  sliortly  iKifore  tlu^  trial, 
after  the  storm  window  had  iKU'n  removed,  and  the  witness  raised 
tlie  permanent,  window  two  or  thnn'  iiiclies,  and  looked  and 
listciKMJ  tliroiifih  the  opcTiiiifj:.  The  oidy  evidence  as  to  the 
result  of  the  second  experiment  was  that  the  witiu^ss  distinctly 
recognized  the  defemlunt's  voice  while  conversing  in  an  or<linary 
tone  ol"  voice  in  front  of  liis  lionsc, — a  distance  as  great  as  or 
gre.iler  than  tliat  at  wliieli  tlio  girls  testilied  to  have  heard  it. 

The  admission  of  the  evidence  as  to  the  result.s  of  tlw'sc  expcri- 
lueiils  is  assigned  as  error.  This  was  not  ])rejudicial  error, 
for  at  least  two  reasons:  First.  'J'he  evidence  did  not  tend  to 
(•stal>lish  any  fact  tluit  was  not  already  self-evident  from  the 
photographs  and  measurements  in  evidence.  Second.  The  dc- 
fendaiit  liad  the  riglit  to  inji)eaeli  the  testimony  of  the  young 
woincii  by  showing,  as  the  result  of  experiments,  that,  they  could 
not  have  se<'n  and  lieard  from  this  window  what  they  testilied  to. 
If  lie  had  done  so,  it  wcuiUl  have  b<'en  competent  for  the  State 
to  show  by  experiments  that  they  could  liave  seen  and  heard  it. 
Ihit  it  can  nuike  no  difference  Avhether  the  defendant  attem])ted 
to  impeach  their  evidence  by  actual  experiments,  or  by  other 
evidence  tending  to  show  that  it  was  ]>hysically  im])ossil)le  for 
them  to  see  what  they  tx^stified  to.  As  to  the  alleged  change  of 
conditions  at  the  second  experiment,  it  was  not  material  as 
respects  the  testimony  elicited,  to-wit,  the  distance  at  which 
defendant's  voice  e<mld  Ik;  recognized  by  one  familiar  with  it. 

i").  'J'lie  twelfth  and  thirteenth  assignments  of  error  are  that 
the  court  eiTcd  in  denying  the  defendant's  motion  that  the  State 
k'  reijuired  to  call  and  examine  Lina  Brandon  and  Earl  -larvis, 
whose  names  were  indorsed  on  the  indictment.    From  the  record 


'■! 


E'l  ' 


U.' 


2U 


AMEIUCAX  CRIMINAL  REPORTS. 


J '  «' 


I 


3,  f 


it  appears  that  the  motion  wns  not  thnt  the  State  plionUl  ])rn(lii:H> 
tlu  111  in  court,  so  that  detonthint  niiaht  txaniinn  them  as  liis  wir- 
iif's.scs,  hut  that  it  should  he  required  to  examine  them  ns  lis 
cwn  witnesses,  and  the  sole  ground  upon  which  the  motif)ii  was 
hased  was  that  their  names  were  on  the  hack  of  the  indicriiicnt. 
Il  is  a  snilicient  answer  to  this  ])oint  to  say  tliat  it  never  was  ilu. 
rule  that  the  prosecutor  was  bound  to  call  all  the  witnesses  on  the 
hack  of  the  hill.  All  that  was  ever  recpiired,  oven  at  coniiiKiri 
law,  was  that  ho  should  present  them  in  court,  in  order  that  the 
prisoner  might  examine  them  as  his  own  witnesses  if  ho  <lesireil. 
1  Archb.  Cr.  Prac.  &  PI.  p.  5S3.  Altlutugh  j)erhaps  not  uiiit(  - 
rial,  it  nniy  ho  added  that  it  a])pears  that  Jarvis  was  present, 
and  was  in  fact  called  and  examined  In'  the  defendant;  nlso 
that  Brandon  was  defendant's  sister-in-law,  and  a  member  of 
his  family. 

What  has  lx>en  said  fully  disposes  of  the  assignments  of  ermr, 
hut  in  his  brief  counsel  argnis  them  u])on  another  gnnind,  lo-wjt, 
that  it  was  the  bounden  duty  of  the  State  to  call  all  the  eye- 
witnesses of  the  transaction  or  res  f/cslae.  The  old  rnh;  thus 
invoked  had  its  origin  at  a  time  when  a  party  accused  et'  a 
teloiiy  was  not  permitted  tt)  introduce  witnesses  at  all.  lience 
tiie  justice  of  the  rule  adopted  by  the  judges  that  the  proseeiilinn 
must  introduce  all  of  the  (yewitnessos  of  the  transaction.  Ihu 
now  th(i  accused  has  not  only  the  right  to  introduce  witnesses  in 
his  own  behalf,  but  also  to  compidsory  jirocess,  iit  the  expense 
of  the  State,  to  cfniipel  their  attendance*.  The  general  doctrine 
of  the  courts  now  is  that,  the  reason  having  cojised,  the  rule  has 
also  ceased,  and  that  now  the  State,  like  any  other  party,  i-; 
))ermitted  either  to  call,  or  to  decline  to  call,  any  competent  wit- 
nc-s.  So  far  as  we  can  discover  from  a  somewhat  hasty  exaniina- 
lion  of  the  authorities,  ^liehigan  seems  to  1x'  the  only  jurisdic- 
tion holding  to  the  contrary.  As  a  prosecuting  officer  represeiUs 
the  ])ublic  interest,  and  should  try  a  case  rather  as  a  minister  of 
justice  than  as  a  partisan,  there  may  be  circinnstances  where  it 
would  be  wrong  for  him  to  decline  to  call  a  witness  favorable  to 
lh(*  defendant,  and  doubtless,  in  such  a  case,  the  court,  on  its 
own  motion,  might  require  the  witness  to  be  called  and  exam- 
ined. But,  without  determining  whether  the  old  rule  still 
obtains  either  in  whole  or  in  part,  it  is  sufficient  for  the  present 
case  to  say  that  it  was  nowhere  made  to  ajijjcar  that  either  of 
these  parties  were  eyewitnesses  of  the  transaction.     Inileed,  it 


decei 


STATE  ;-.  SMITH. 


245 


nffirrnntivoly  npponrs,  if  ho  is  to  bo  bolicvod,  that  Jnrvis  was  not. 

(I.  The  (i(lVii(hint  further  contciuls  that  the  court  erred  in 
chiir^i.'iiif''  tho  jury  that: 

"If  tho  (l('foii(huit,  without  it  hoinj2^  norossary  to  defend  him- 
gclf,  willfully  ])Urth(>(l  tho  person  killed  off  the  sidewalk,  or  struck 
him  and  kiwM'ked  him  down,  so  that  he  rcec  ived  injuries  from 
which  he  died,  it  would  he  manslaughter  in  tho  first  doi^reo." 

The  court  did  not  so  charge.  What  he  charf>:ed  was  that  it 
would  ho  numslaughter  in  the  second  degi'oe.  Tho  only  ground 
upon  which  it  is  claimed  tluit  the  cliargo  was  erroneous  is  that 
then!  was  no  evidence  upon  which  to  base  it.  But  this  assign- 
iiiciit  of  error  cannot  he  consid<'red,  because  there  was  no  sutli- 
cicnt  exception  to  tho  charge  to  raise  the  point,  Tho  only  excep- 
tion which,  by  any  jxissibility,  could  refer  to  it,  was,  "Defendant 
(■.'.ceptrt  to  the  court's  charge  with  referenco  to  tho  degree  of 
iiiaiislaughter." 

7.  The  only  other  assignments  of  error  worthy  of  considera- 
tion nniy  Xk'  considered  togetiier,  as  they  go  to  the  sufficiency  of 
t!ic  evidence  to  justify  the  verdict.  We  shall  not  attom])t  to  do 
anything  more  than  to  refer  to  a  few  of  tho  more  salient  features 
of  the  evidence. 

It  is  practically  undisputed  that  on  tho  afternoon  of  tho  8th 
the  deceased  canu*  into  ilefendant's  saloon  with  a  sample  case 
containing  samples  of  cloth  for  men's  garments,  and  also  with 
two  hats,  which  he  wished  to  sell;  that  ho  sold  one  of  them  for 
a  dollar  to  a  person  who  was  in  tiic  saloon,  and  traded  tho  other 
to  the  defendant  for  the  agreed  consideration  of  a  bottle  of 
whisky;  that  he  was  so  intoxicated  that  he  fell  out  of  his  chair, 
and  lay  aslc<'p  on  the  floor,  until  about  11  o'clcK'k,  Avhen  de- 
fendant aroused  him,  and  told  him  that  it  was  time  to  leave, 
iis  he  (defendant)  wished  to  shut  up;  that  the  deceased  then 
requested  defendant  to  give  him  his  bottle  of  whisky;  that  de- 
fendant refuse«l  to  do  so,  giving  as  a  reason  that  the  deceased 
already  luul  enough,  and  that  he  would  give  it  to  him  some  other 
time;  that  deceased  then  denuinded  the  return  of  the  hat;  that, 
upon  defendant's  refusal  to  return  it,  the  deceased  attempti  d  to 
take  it  by  force;  that  thereupon  tho  defendant  ejecte<l  tho 
deceased  by  force,  and  fastened  tho  door  behind  him ;  that 
deceased  refused  to  leave,  but  contiuiied  on  the  sidewalk  in  front 
of  the  t^aloon,  pounding  on  the  door  and  window,  swearing  and 
demanding  his  hat.  This  Avas  the  last  that  was  seen  of  tho 
deceased  befon.  ho  received  the  injuries  of  which  he  died. 


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246 


AMERICAN  CRIMINAL  REPORTS. 


Tlien  followed  the  testimony  of  the  two  young  Avomen,  alrciulv 
referred  to,  who,  on  being  aroused  by  the  noise  on  the  sidewalk, 
got  uji,  and  looked  out  of  the  window.  It  was  too  dark  for  tliciu 
to  recognize  any  one  by  sight,  or  to  sec  distinctly  what  occurred, 
but  they  testified  to  seeing  the  figures  of  two  men  on  the  side- 
walk engaged  in  an  altercation  of  words  and  in  a  scuffle ;  tliat 
they  distinctly  recognized  the  voice  of  one  of  the  men  as  that  of 
the  defendant,  with  whom  they  were  quite  well  acquaintetl ;  tliat 
they  saw  one  of  the  men  fall  down  and  get  tip  again,  and  snon 
fall  down  again,  after  which  he  did  not  rise.  Their  testimony 
has  the  air  of  truthfulness  and  probability.  The  next  scene  in 
the  transaction  disclosed  by  the  evidence  is  that,  shortly  In't'ore 
12  o'clock,  Lina  Brandon,  the  sister-in-law  of  defendant,  and  a 
nienilier  of  his  family,  went  over  to  the  house  of  a  neighlxn- 
named  Ilansini,  and  rctpiested  him  to  come  over  quick,  that 
"Bates  was  nearly  kilk'<l."  Hanson  got  xip,  and  went  over,  and 
found  the  decoiusrd  lying  unconscious  and  bleeding  alH)ut  in 
front  of  defendant's  saloon,  with  his  head  out  in  the  street,  and 
his  feet  on  the  sidewalk,  and  his  necktie  and  bloody  collar  lying 
within  a  short  distance  from  his  head.  The  ground  was  frozen 
aiid  covered  with  snow,  but  there  is  no  evidence  that  the  siirt'acc 
of  the  street  was  rough,  or  contained  any  projecting  objects,  at 
the  place  where  the  deceased  fell.  Quite  a  number  of  the  resi- 
dents of  the  vicinity,  of  whom  defejidant  was  not  one,  soon 
congi'egated,  as  was  natural,  under  the  circumstances,  and  the 
result  was  that  among  them  they  obtained  a  team,  and  conveyed 
the  deceased  to  his  residence,  over  in  Pembina,  where  he  died 
that  night. 

All  the  ])hysicians  who  took  part  in  the  autopsy  testified  that 
they  found  that  deceased  had  sustained  two  fractures  of  the  skull 
and,  on  the  same  side,  a  fracture  of  the  cheek  bone;  that,  in 
their  opinion,  these  injuries  were  caused  by  a  blow  or  blows 
from  some  blunt  instrument ;  and  that  these  injuries  caused  his 
death.  It  is  true  that  on  cross-examination  they  testified  that 
the  injuries  might  have  Ixen  caused  by  the  deceased's  falling 
from  the  sidewalk  into  the  street  under  certaiti  special  circum- 
stances, as,  for  eximi])le,  if  he  was  at  the  time  in  very  rapid 
motion,  and  fell  upon  some  hard  object  with  very  great  violence. 
But  it  is  evident  that  they  admitted  this  as  a  mere  possibility, 
and  not  a  probability, — a  fact  which,  in  view  of  the  severity  of 
the  injuries,  would  be  apparent  to  any  layman,  especially  where 


th 
hi 


I 


COMMONWEALTH  v.  MORRIEON. 


247 


the  injured  person  was  at  the  time  intoxicated,  and  consequently 
his  muscles  relaxed. 

Any  one  accustomed  to  weighing  evidence  cannot  read  the 
record  without  being  fully  impressed  with  the  conviction  that 
the  defendant  and  his  family  must  have  known  more  aboiit  the 
facts  of  the  case  than  is  disclosed  by  the  evidence.  !N"either 
I'.is  wife  nor  his  sister-in-law  were  calletl  as  witnesses.  Ilis  own 
testimony  was  in  some  respects  highly  improbable,  and  on  a 
nunib(  r  of  material  points  flatly  contradicted  by  other  witnesses. 
He  denied  or  evaded  the  trade  of  the  hat  for  whisky, — a  fact 
whicli  was  testified  to  by  some  of  his  own  witnesses,  and  is 
corroborated  by  many  of  the  surrounding  circumstances.  Ac- 
cording to  his  testimony,  lie  did  not  at  any  time  during  the 
evening  go  out  of  the  building  after  he  ejected  the  deceased,  not 
even  to  ascertain  how  badly  he  was  injured,  or  to  assist  in  taking 
care  of  him, — a  course  of  conduct  difficult  to  accoimt  for,  except 
on  the  ground  of  a  consciousness  that  he  was  in  sumo  way  con- 
nected with  causing  the  injuries.  lie  also  testified  that  ho  did 
not  know  that  the  deceased  was  seriously  injured,  or  tliat  his 
sister-in-law  had  gone  over  after  Hanson,  imtil  the  next  morn- 
ing,— a  statement  which,  under  the  circumstances,  is  ratlicv  in- 
credible. Other  facts  and  circumstances  might  be  referred  to, 
but,  without  discussing  the  evidence  further,  we  are  sati^lied 
tliat  it  was  sufHcient,  even  in  a  criminal  ease,  to  justify  the  ver- 
dict. This  disposes  of  all  the  assigmnents  of  error  of  sufhcient 
im|>ortance  to  be  worthy  of  special  notice. 

Order  denying  a  new  trial  is  affirmed,  and  the  cause  remanded 
for  judgment  and  sentence  In  accordance  witli  the  verdict. 


'Q 


Commonwealth  v.  IMorrison. 

193  Pa.  St.  613—44  Atl.  Rep.  913. 

Decided  December  30.  1899. 

Homicide — Mubder  in  First  Deoree:    Evidence — Approved  inatructiona 
— Appellate  review  of  merits — Clerical  error. 

1.  At  defendant'f?  suggestion,  the  defendant  and  the  deceased,  who  were 
strangers,  entered  Into  a  game  which  led  to  a  dispute,  In  which 
deceased  knocked  the  defendant  down  and  then  stepped  away  a  few 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  iu 
this  volume. 


in 


si 


248 


AMERICAN  CRIMINAL  REPORTS. 


feet;  the  defendant  after  a  brief  delay,  approached  deceased  with 
his  knife  concealed,  and  Immediately  Inflicted  a  ghastly  mortal 
wound  In  a  vital  part  of  the  body,  held  sufficient  to  Justify  a  verdict 
of  murder  in  the  first  degree. 

2.  Under  the  statutes  of  Pennsylvania,  the  Supreme  Court  Is  required 

to  review  both  the  law  and  the  evidence  to  determine  whether  the 
proof  shows  murder  In  the  first  degree;  but  whether  the  testimony 
should  be  credited  rests  with  the  trial  court. 

3.  In  the  absence  of  qualifying  circumstances,  one  giving  a  blow  with 

a  deadly  weapon  on  vital  part  of  the  body  Is  presumed  to  know  and 
intend  the  natural  consequences  of  the  act. 

4.  The  trial  Court  has  reasonable  discretionary  powers  to  attend  *o  the 

comforts  of  jurors  who  are  HI. 

5.  A  clerical  error  made  by  a  court  official  as  to  the  term  number  of 

the  case  Is  not  reversible  error. 
C.  Nine  Instructions  given  at  the  request  of  defendant,  set  out  In  the 
opinion,  approved. 

Appeal  from  the  Coiirt  of  Oyer  and  Ttriiiinor,  Mifflin  County. 
Joseph  Morrison,  convicted  of  ^  murder  in   tlie  tirst  degree, 
appeals.     Affirmed. 

Culbertson  £  Culhcrtson,  for  the  api)ellant. 

..-l.  Reed  Ilaiies,  District  Attorney,  and  Howard  0.  Lantz,  for 
the  Commonwealth. 

Stkkrett,  C.  J.  This  appeal  hy  the  prisoner  is  from  the 
sentence  of  the  law  impos<Hl  on  him  by  the  court  below  for  mur- 
der of  the  first  degree,  of  which,  after  a  fair,  full,  and  impartial 
trial,  he  was  duly  found  guilty. 

The  first  assignment  of  error  alleges  that  "the  ingr(>dients 
necessary  to  constitute  a  murder  of  the  first  degree  <lo  not  exist 
in  this  case."  This  specification  is  under  the  s«'cond  section  of 
tlie  acl  of  February  15,  1870  (P.  L.  15),  which  recjuires  us,  iu 
all  cases  of  murder  of  the  first  degree,  "to  review  both  th(>  law 
and  the  evidence,  and  to  determine  whether  the  ingredients 
necessary  to  constitute  "uurder  of  the  first  degree  shall  have 
been  ])roven  to  exist."  It  thus  becomes  our  duty  to  see  whetlu  r 
competent  en'idenco  was  introduced,  which,  if  believed  by  the 
jury,'  would  furnish  the  elements  or  "ingredients"  of  that 
grade  of  murder.  Whether  the  jury  should  or  should  not  have 
believed  and  relied  on  the  evidence  is  not  for  us  to  determine. 
That  question  was  considered  and  disposed  of  in  the  proper 
forum,  on  the  motion  for  a  new  trial.     Grant  v.  Com.,  71  I'a. 


COMMONWEALTH  v.  MORRISON, 


249 


St.  495.  In  this  case  we  have  to  deal  onlj-  with  that  kind  of 
lunrdor  of  the  first  degree  which  is  described  in  our  statute  as 
'Svillful,  deliberate,  and  premeditated  killing."  Xo  other  kind 
(if  that  grade  is  even  suggested  in  the  record.  A  consideration 
(  r  the  evidence,  as  well  as  the  law,  applicable  to  that  grade  of 
iiMirder,  is  therefore  required  in  disposing  of  the  first  specifica- 
tion. 

The  corpus  delicti,  and  the  fact  that  the  mortal  wound,  which 
speedily  caused  the  death  of  Harry  Dougherty,  Avas  intlicted  by 
the  prisoner,  were  both  so  clearly  and  conclusively  established 
by  the  evidence  that  there  could  be  no  doubt  as  to  either.  The 
facts  and  circumstances  which  led  iip  to  homicide  are  substan- 
tially these:  The  jirisoner  and  Dougherty  met,  tor  the  first 
time,  at  the  stable  of  the  hotel  in  Belleville,  ^litfiin  county.  In 
an  effort  to  find  some  one  to  join  him  in  a  game  of  "poker,"  the 
prisoner  sjuike  to  Dougherty,  who  at  first  refused  to  jilay  tlnlt 
game,  but  afterwards  agreed  to  ''match  dollars"  witli  him.  This 
soon  led  to  a  dispute,  and  an  altercation  ensued,  which  soon 
ended  in  blows.  Doiigherty  finally  knocked  the  prisimer  down. 
Charles  Wells,  an  eyewitness  to  the  transaction,  testified:  That 
after  Dougherty  "'ait  him  [the  prisoner]  he  walked  back  to  the 
stable  door,  and  leaned  back  against  it."  That  th(^  |irisoner 
"got  up  from  where  ho  was  knocked  down,  and  cami'  uj)  about 
halfway  to  ^Ir.  Dougherty.  That  was  al)out  six  feet,  I  sup- 
pose. Then  he  turned  round,  and  went  clear  back  to  where  he 
was  knocki'd  down, — clear  back  to  the  buggy  wheel.  He  then 
took  and  turned  around,  and  came  clear  back  up  to  Mr.  Dough- 
erty. Jle  had  his  right  arm  iM'hind  his  back.  He  had  his  left 
arm  on  Mr.  Dougherty's  shoulder.  Then  Mr.  ^lorrison  fetched 
his  right  arm  from  behind  his  back,  and  cut  Mr.  Dougherty." 

That  witness  was  fully  corroborated  by  several  others,  one  of 
whom  (Charles  Young)  testified  that,  when  the  ])risoner  was 
knocked  tlown,  "he  laid  for  three  or  four  minutes  befoi-e  lie  got 
up,  and  looked  around,  and  he  was  stunned.  He  looked  around, 
before  he  came  up  to  Dougherty,  to  see  where  he  was,  and  when 
he  sighted  him  he  walked  right  up  to  him.  He  asked  Dough- 
erty what  he  hit  him  for,  and  then  he  just  laid  his  left  hand 
right  on  his  shoulder,  and  cut  hini  with  his  right."  Another 
witness  (Albert  S.  Giblnmy)  testified:  "I  saw  ^lorrison  com- 
ing out  of  the  crowd.  He  opened  a  knife,  and  piit  it  behind 
his  back,  walked  through  the  crowd,  walked  up  to  the  num  that 


If-' 


m 


c-.'  I 


J, 


(   ■; 


250 


AMERICAN  CRIMINAL  REPORTS. 


was  Dougherty  and  stabbed  hipi."     ...     "I  snw  him  mako 
a  lunge  at  him." 

Shannon  Shook  also  testified  that,  after  the  prisoner  Avas 
knocked  down,  "he  turned  around,  and  came  back  to  the  stable 
dooi*,  where  Dougherty  was  ihen  standing.  lie  walked  uj)  t<, 
Mr.  Dougherty,  .  .  .  made  a  run  towards  him,  aud 
tlirew  his  arm  over  his  shoulder,  and  stabbed  him"  with  "his 
right  arm, — the  knife."  "He  passed  me  going  up  to  Dougli- 
erty."  The  witness  further  adiled  that  he  then  saw  tlu;  kuif(; 
in  his  hand.     "He  had  it  behind  his  back,  in  his  hand." 

The  foregoing  testin;ony  was  further  corro])orat('d  by  the  wir- 
nesses  Ilembaugli,  Fleming,  and  Sankey.  The  last-named  wir- 
ness  testified  that,  in  reply  to  a  qiiestion  as  to  why  he  killed  tlie 
deceased,  tlie  prisoner  answered,  "He  struck  me  in  the  month." 
In  this  connection,  it  may  Ik?  added  that  the  prisoner  testilicd, 
in  substance,  that  the  stabbing  was  in  self-defense. 

^luch  other  evidence,  tending  to  prove  that  the  mortal  woui.d 
in  question  was  inflicted  by  the  prisoner  substantially  in  the 
manner  and  under  the  circumstances  testified  to  by  the  wit- 
nesses, might  l)e  referred  to,  but  it  is  unnecessary.  The  evi- 
dence introduced  and  relied  on  by  the  Commonwealth  was 
abundantly  sufiicient  to  carry  the  case  to  the  jury  on  all  tlu; 
questions  ol  fact  submitted  to  them  by  the  learned  preside  nt  of 
the  Oyer  aTid  Terminer.  Com.  v.  Drum,  58  Pa.  St.  1(! ;  Jji/ii'h 
V.  Com.,  77  Pa.  St.  207 ;  Lanahan  v.  Com.,  84  Pa.  St.  80 ;  CV 
V.  Bnrclcri.  \'>3  Pa.  St.  .535,  2G  Atl.  228;  Cotn.  v.  Breyessee, 
160  Pa.  St.  450,  28  Atl.  824. 

The  learned  judge's  instructions  to  the  jury  including  his 
definitions  of  homicide,  murder  at  common  law,  nuirder  of  the 
first  and  murder  of  the  second  degree  imder  our  statute,  man- 
slaughter, etc.,  were  clear,  impartial,  comprehensive,  and  fne 
from  any  substantial  erro/.  Thirty  requests  for  instructions, 
embracing  every  phase  of  the  case,  and  the  principles  of  law  ap- 
plicable thereto,  were  submitted  by  the  prisoner's  counsel,  and 
all  of  them  except  one  were  affirmed  by  the  court.  Its  answer 
to  that  reijuest  has  been  accepted  by  counsel  as  containing  noth- 
ing upon  which  to  base  a  specification  of  error. 

In  affirming  the  prisoner's  first,  seventh,  twelfth,  and  twenty- 
spventh  requests,  the  court  instructed  the  jury,  in  the  language 
thereof,  thus: 

"(1)  If  the  intent  is  not  to  kill,  but  to  do  great  bodily  harm, 


COMMONWEALTH  v.  MORRISON. 


251 


even  if  there  be  malice,  deliberation,  and  premeditation,  the  of- 
fense will  not  rise  higher  in  grade  than  murder  of  the  second 
decree. 

'*(2)  A  reasonable  doubt  as  to  the  existence  of  malice  is 
sufficient  to  reduce  the  grade  of  homicide  to  voluntary 
manslaughter. 

'■('5)  To  convict  the  prisoner  of  murder  of  the  first  degree, 
the  jnrv  must  find  he  committed  Svillful,  deliberate,  and  pre- 
meditated murdrr,  with  malice  aforethought,'  and  each  of  these 
\v(ir<ls  mus*-  bb  fouVid  to  apply  to  the  crime. 

''(4)  That  while  the  law  presumes  every  imlawful  killing 
with  malice,  express  or  implied,  to  be  murder,  that  presumjition 
rises  no  higher  than  mnrdcr  at  common  law  and  murder  of  the 
second  degree,  and  the  burden  is  on  the  Commonwealth  to  shoAV 
by  the  testimony  that  it  is  murder  of  the  first  degree,  uu'ler  our 
statute. 

"(;">)  The  burden  of  proof  never  ''hifts,  but  remains  with  the 
ComniDU wealth  throughout  to  ])rove,  beyond  a  reasonable  doubt, 
each  and  e/ery,  all  aud  singular,  the  material  averments  in  the 
indictuK  nt.  If  all  of  this  is  not  clearly  and  satisfactorily 
shown  beyond  a  reasonable  doubt,  the  jury  sliould  acquit. 

''((»)  'Manslaughter'  is  defined  to  be  the  unlawful  killing  of 
another,  without  malice,  express  or  imjilied,  which  may  be 
voluntary,  in  a  sudden  heat  or  quarrel,  or  involuntary,  but  in 
the  commission  of  an  unlawful  act.  If  the  jury  find  such  of- 
fense b(  voiid  all  reasonable  doubt  the  verdict  should  be  guiUv  of 
nuinshiugliter. 

"(T)  It  is  necessary,  in  order  to  convict  tJie  prisoner  of  the 
crime  charged  in  the  indictment,  or  of  any  degree  of  murder  or 
ni.'iiisiaiighter,  upon  the  evidence  of  circumstances,  that  such 
circiniistances  all  concur  to  show  that  the  defendant  conuiiitted 
siu'li  eriiue,  and  that  such  circumstances  ai*e  all  inconsistent 
with  any  other  rational  conclusion.     .     .     . 

'"(^'2)  In  this  case,  the  law  raises  no  presumption  against 
the  prisoner,  but  every  presumption  of  the  law  is  in  favor  of 
his  inniicencc;  and  in  order  to  convict  him  of  the  crime  alleged 
in  the  indictment,  or  of  any  lesser  crime  included  in  it,  every 
iiiat(  rial  fact  necessary  to  c<mstitr.te  such  crime  must  be  proved 
beyond  a  reasonable  doubt,  upon  any  single  fact  or  element 
n(C(ssary  to  constitute  the  crime;  and  it  is  your  duty  to  give 
the  prisoner  the  benefit  of  such  doubt  and  acquit  him.     .     .     . 


ii» 


iM 


252 


AMERICAN  CRIMINAL  REPORTS. 


''(27)  If  you  find  that  the  deceased,  at  or  before  the  time  the 
fatal  blow  was  struck,  was  advancing  toward  the  defendant  in 
a  menacing  manner,  or  was  striking  at  the  defendant,  or  strik- 
ing defendant,  and  if  the  defendant  at  that  time  had  reason  to 
believe,  and  did  believe,  that  he  was  in  inmiinent  danger  of 
death  or  great  Iwdily  harm,  then  the  defendant  would  lx»  justi- 
fied in  such  striking." 

Acting  under  those  and  the  fuller  instructions  contained  in 
the  learned  judge's  charge,  and  aihrnnUive  answers  to  the  pris- 
oner's remaining  requests,  the  jury  doubtless  had  a  clear  con- 
ception of  their  duty  iii  ajVplying  the  law  to  the  facts  as  they 
fcmnd  them  from  the  evidence;  and,  in  declaring  by  their  ver- 
dict, that  the  prisoner  was  "guilty  of  murder  in  the  first  de- 
gree," they  must  have  found  all  of  the  facts  or  ^'ingredients" 
necessary  to  c<mstitute  that  high  felony.  In  other  Avords,  they 
must  have  found  that  the  killing  was  not  done  in  justifial>le  self- 
defense,  Tior  in  a  sudden  transport  or  heat  of  passion  generated 
by  adequate  provocation,  but  that  it  was  done  wilfully  and  ma- 
liciously, and  with  intent  to  take  life.  These  conclusions  were 
not  unwarranted  by  the  evidence  as  to  what  occurred  at  and 
about  the  time  the  stabbing  was  done,  and  also  as  to  the  nature 
and  character  of  the  wound  and  the  manner  in  which  it  was 
inflicted.  As  shown  by  the  evidence,  after  the  prisoner  was 
knocked  down  and  after  I^ougherty  walked  away  from  him,  he 
appears  to  have  opened  his  knife,  and  thus  ai'uied  with  the  o])en 
knife  in  his  right  hand  Ixdiind  his  back,  he  ap])roaehed  Dough- 
erty, who  was  still  standing  at  the  stable  door,  laid  his  hand  on 
his  shoulder,  asked  him  why  he  hit  him,  and  without  further 
warning  drew  the  knife  from  l)ehind  liis  back,  jdunged  it  into 
Dougherty's  left  thigh — nearly  severing  the  femoral  artery — 
and  drew  it  across  his  abdomen.  According  to  the  physician's 
testimony,  the  wound  was  ten  inches  long,  alM)ut  five  inches  of 
it  in  the  thigh,  and  about  the  same  length  across  the  abdomen, 
deep  enovtgh  in  the  thigh  to  partially  sever  the  femoral  artery, 
and  deep  enough  in  the  abdomen  to  reach  the  peritoneum,  Tlu; 
mortal  wound  thus  inflicted  was  in  a  vital  i)art  of  the  lx»dy,  and 
death  speedily  ensued.  It  has  been  said  by  this  court  that  "he 
Avho  uses  upon  the  iierson  of  another,  at  some  vital  jiart,  with 
manifest  intention  to  use  it  upon  him,  a  deadly  weapon,  such 
as  an  ax,  a  gun,  or  a  knife,  must,  in  the  absence  of  qualifying 
circumstances,  be  presumed  to  know  that  it  is  likely  to  kill,  and, 


kno 
the 
ltd) 


Tl 

Wi 

in 


COMMONWEALTH  V.  MORRISON. 


253 


W 


11 


ho 
in 

k- 
to 


knowiii":  this,  must  be  presumed  to  intend  the  death  which  is 
the'  probable  and  ordinary  consequence  of  such  an  act."  Lana- 
haii  r.  Com.,  84  Pa.  St.  80,  88. 

In  view  of  wlmt  has  been  said,  the  first  specification  of  error 
cannot  1)0  sustained. 

A  careful  review  of  the  law  and  the  evidence  has  satisfied 
us  that  there  was  projierly  Ix'fore  the  jury  in  this  case  compe- 
tent evidence  tending  to  prove  all  the  facts  or  ^'ingredients" 
necessary  to  constitute  the  crime  of  murder  of  the  first  degree.. 
That  evidence,  together  with  a'l  the  other  evidence  in  the  case, 
was  riglitly  before  the  jury  .f(ir  their  exclusive  consideration 
in  determining  the  facts  submitted  to  them.  The  action  of  the 
trial  court,  in  denying  the  prisoner's  motion  for  a  new  trial, 
shows  that  it  was  satisfied  with  the  jury's  findings  of  fact,  as 
well  as  their  ai)plication  of  the  law  to  the  facts  thus  estab- 
lished. 

The  subjects  of  comidaint  in  the  second  to  the  eighth  speci- 
fications, inclusive,  an^  to  the  charge  of  the  court,  mainly  on 
th"  grounds  that  it  was  inadetjuatc,  not  sufticiently  specific,  etc. 
We  have  already  had  occasion  to  refer  at  some  length  to  the 
evidence,  charge  of  the  court,  etc.  As  to  the  charge,  we  char- 
acterizecl  it  as  "clear,  impartial,  comprehensive,  and  free  from 
substantial  error" ;  and  we  may  now  add  that  it  is  neither  in- 
adequate nor  lacking  in  sufficient  precision.  The  thirty  re- 
quests tor  instructions,  submitted  by  the  prisoner's  counsel, 
nine  of  which  are  qu(jted  al>ove,  were  doid)tless  intended  to  cover 
every  i»hase  of  the  case  as  presented  by  the  evidence.  If  addi- 
tional instructions  were  required  or  de^red,  they  should  have 
been  requested.  Com.  v.  Zappc,  153  Pa.  St.  498,  26  Atl.  10; 
Com.  r.  Boschino,  170  Pa.  St.  115,  34  Atl.  964.  We  find  noth- 
ing in  the  record  that  would  justify  us  in  sustaining  any  of 
these  seven  specifications;  nor  do  we  think  either  of  them  re- 
quires further  notice. 

The  ninth,  tenth,  and  eleventh  specifications  relate  to  single 
sentences  taken  from  the  general  charge,  and  depend  largely 
on  the  punctuation  of  the  stenographer  to  sustain  the  objections 
of  the  prisoner's  counsel.  Considered  in  connection  with  the 
context,  and  the  charge  generally,  as  delivered  by  the  court, 
thev  are  free  from  ei*ror.  In  his  opinion  refusing  the  motion 
for  a  now  trial,  the  learned  judge  refers  to  and  satisfactorily 
explains  the  stenographer's  errors  of  punctuation.     It  may  be 


m 


254 


AMERICAN  CRIMINAL  REPORTS. 


suggested,  in  passing,  that  such  errors  should  be  corrected  by 
tlu!  court  below  before  the  record  is  certified  to  us. 

'JMu're  was  no  reversible  error  in  not  offering  in  evidence  the 
garineiit  referred  to  in  the  twelfth  specification.  There  is  notli 
iiig  to  indicate  that  the  prisoner  was  in  any  way  prcjuiliced  by 
the  Commonwealth's  omission ;  nor  does  it  appear  that  it  was 
not  (qually  in  the  power  of  the  prisoner  to  put  it  in  evidence 
himself,  if  he  so  desired. 

Tliere  is  no  merit  in  the  thirteenth  specification.  What  was 
done  f(3r  the  comfort  and  convenience  of  jurors  who  were  tem- 
porarily indisposed  during  the  trial  was  a  matter  resting  on  the 
sound  discretion  of  the  court,  and  there  is  not  a  particle  of  evi- 
dence to  show  any  abuse  of  that  discretion. 

The  fourteenth  specification  cannot  be  sustained.  The  clerical 
error  of  the  court's  officer  in  writing  the  wrong  number  of  the 
term,  in  recording  the  sentence,  did  not  in  any  way  injure  tho 
prisoner. 

In  view  of  what  the  learned  trial  judge  has  said  in  his  opin- 
ion denying  the  motion  for  a  new  trial,  further  connncnt  tm 
the  specifications  of  error  is  not  required.  The  case  appears 
to  have  been  carefully  and  ably  j;ried  on  tho  part  of  the  court 
as  well  as  counsel.  The  responsibility  of  determining  the 
facts,  and  applying  to  tliem  the  law  as  laid  down  by  tho  court, 
devolved  on  the  jury.  Under  the  instructions  given  to  them, 
it  was  their  exclusive  duty  to  weigh  and  consider  all  the  evi- 
dence, and  determine  whether  tho  prisoner  was  guilty  of  murder 
of  tho  first  degrre>  or  of  murder  of  the  second  degree,  or  of 
manslaughter,  or  not  guilty  of  any  crime  included  in  the  indict- 
ment. That  duty  was  fairly  and  forcibly  enjoined  upon  them 
by  the  learned  trial  judge  in  the  concluding  paragraph  of  his 
charge.  That  it  was  faithfully  and  conscientiously  pei'formed, 
wo  have  no  reason  to  doubt. 

We  have  given  to  this  case  that  careful  consideration  which, 
in  view  of  the  gravity  of  the  judgment,  its  importance  to  the 
])risoner  demands,  and  the  result  is  that  we  find  no  error  in  the 
record  that  would  justify  us  in  disturbing  the  verdict  or  the 
judgment  entered  thereon.  The  judgment  is  therefore  affirmed, 
and  it  is  ordered  that  the  record  be  remitted  to  the  court  below 
for  the  purpose  of  execution. 


N( 
der, 


COMMONWEALTH  v.  KRAUSE. 


255 


1 

1 

I' 

\ 

Note  (By  J.  F.  G.). — The  following  old  English  case,  defining  mur- 
der, should  be  read,  In  the  qualifying  doctrine  of  reasonable  doubt: 

LEGO'S  CASE. 
Kelyng  27. 
Newgate  Sessions,  14  Charles  2. 
At  the  same  Sessions,  one  John  Legg,  being  Indicted  for  the  Murder 
of  Mr.  Robert  Wise.     It  was  upon  the  Evidence  agreed,  that  If  one 
Man  kill  another,  and  no  sudden  Quarrel  appeareth,  this  Is  Murder,  as 
(Jo.  9  Rep.  fol.  C7  6.  Makelly's  Case.    And  it  lyeth  upon  the  Party  In- 
dicted to  prove  the  sudden  Quarrel. 

And  In  this  Case  was  also  agreed,  that  If  two  Men  fall  out  In  the 
r.Io:ning,  and  meet  and  Fight  in  the  Afternoon,  and  one  of  them  is 
slain,  this  Is  Murder,  for  there  was  time  to  allay  the  Heat,  and  their 
aiter-meeting  is  of  Malice. 


m 


•1 


Commonwealth  v.  Kuause. 

193  Pa.  St.  30C— 44  Atl.  Rep.  454. 

Decided  October  30,  1899. 

Homicide — Mibder  in  the  Fibst  Degbee:     Intent — Evidence  as  to  the 

state  of  the  mind. 

1.  Calling  from  a  house  a  girl  and  deliberately,  fatally  and  repeatedly 

shooiing  at  her;  and  also  shooting  at  persons  who  interfered  In 
her  behalf,  indicated  an  intention  to  kill,  and  constituted  murder 
In  the  first  degree. 

2.  A  letter  written  by  accused  to  his  brother  a  month  before  the  homi- 

cide and  after  the  deceased  had  refused  the  attentions  of  the  ac- 
cused, was  competent  in  evidence,  as  to  the  state  of  his  mind. 

Appeal    ifoiu   tlio   Court   of   Oyer   and    Terminer,    Lehiefh 
Conuty. 

Frank  J.  Krause,  convicted  of  murder,  appeals.     Affirmed. 

J.  Marshall  Wright  and  J.  J.  Snyder,  for  the  appellant. 

Clinton  A  Groman,  District  Attorney,  and  Leo  Wise,  for  the 
Commonwealth. 

Fell,  J.     At  the  close  of  the  testimony  there  was  but  one 
subject  as  to  which  there  could  be  a  possible  doubt.     That  was 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


'i    M 


m 


M 


256 


AMERICAN  CRIMINAL  REPORTS. 


the  degree  of  tlio  crime.  The  killing  and  the  circumstances 
connected  with  it  had  been  establiwhed  by  testimony  which  was 
withont  contradiction  or  conflict.  There  was  not  even  a  pre- 
tense of  a  legal  justilication  which  would  reduce  the  degree  of 
the  crime  Ix'low  that  of  murder.  The  prisoner  'had  offered  to 
withdraw  his  plea  of  not  guilty,  an<l  to  enter  a  plea  of  guilty  t,t 
murder  of  the  second  dt^reo.  The  argument  now  nmde  in  his 
behalf  is  in  support  of  an  assignment  of  error  to  the  refusal  of 
the  court  to  charge  that  the  testimony  did  not  warrant  a  convic- 
tion of  murder  of  the  first  degree.  In  refusing  so  to  charge, 
the  court  was  clearly  right. 

The  prisoner  fired  five  shots  from  a  revolver,  the  first,  third, 
and  fifth  'f  which  struck  ^laggio  Guth,  inflicting  wounds,  two 
of  which  wcr(>  mortal.  The  second  and  fourth  shots  were  fired 
at  persons  who  had  interfered  for  her  protection,  and  one  of 
them  was  fatal.  In  fixing  the  degree  of  murder,  the  testimony 
warranted  the  conclusion  that  the  ju-isoner  had  taken  the  re- 
volver from  his  rotini  and  called  his  victim  from  the  house  with 
the  purpose  of  killing  her.  A  motive  was  shown.  Tiio  nature 
of  the  weapon,  and  the  manner  of  its  use,  indicatednui  intention 
to  kill.  That  he  armed  himself  and  called  a  helpless  girl,  with 
whom  he  was  angry,  from  the  house,  and  continued  to  shoot  at 
her  after  being  twice  interrupted,  indicated,  not  only  a  specilic 
intent  to  kill,  but  also  that  his  mind  was  fully  conscious  of  its 
own  purpose  and  design,  and  that  the  killing  was  deliberate  and 
premeditated. 

The  second  and  third  assignments  were  not  argued,  and  we 
notice  the  fourth  only  because^,  in  the  form  in  which  the  offer 
and  objection  appear,  they  do  not  fairly  present  the  question 
which  was  before  the  court.  The  letter  written  by  the  prisoner 
to  his  brother  is  dated  January  31,  1S98.  His  acquaintance  with 
jMaggio  Guth  did  not  conmience  until  September,  181)8,  and  the 
letter  was  evidently  written  January  .31,  1899, — a  month  oidy 
before  the  murder.  As  indicating  his  state  of  mind  at  the  latter 
date,  which  Avas  after  she  had  refused  his  attentions,  it  was  com- 
petent testimony. 

The  case  was  carefully  and  ably  tried  by  the  learned  judge, 
and  the  record  is  entirely  free  from  error. 

The  judgment  is  affirmed,  and  it  is  directed  that  the  record 
be  remitted,  in  order  that  the  sentence  may  be  carried  into  execu- 
tion according  to  law. 


1. 

2, 

n 

4. 


TT 


PEOPLE  V.  VAN  WORMER  ET  AL. 


257 


Peopt.k  v.  Van  Wormer  et  nl. 

175  N.  Y.  188— C7  N.  E.  Rep.  299. 

Decided  May  22,  1903. 

HoMiciOE — MunnEB  in  the  First  Deobke:     Evidence — Co-defendant  a 
tcitness — Compulsory  evidence — Practice. 

1.  Favorable  comment  on  the  care  with  which  the  case  was  tried  in 

the  court  below. 

2.  The  evidence  reviewed,  und  held  to  sustain  a  verdict,  for  murder  In 

the  first  degree. 

S.  A  co-defendant,  ''.ui  on  trial,  is  a  competent  witness  for  the  prose- 
cution. 

4.  The  introduction  of  evidence,  that  while  the  defendants  were  under 
arrest,  their  shoes  were  taken  from  them  and  compared  with 
tracks  in  newly  fallen  snow  in  the  vicinity  of  the  homicide,  is  not 
In  violation  of  the  constitutional  guaranty  protecting  an  accused 
from  testifying  against  himself. 

Appoal  from  Supremo  Court,  Trial  Term,  Columbia  County. 
Willis  Van  Wornior,  con\icted  of  murder  in  the  first  degree, 
appeals.     Affirmed. 

J.  Rider  Cady,  Alomo  II.  Farrar,  and  Ezra  D.  De  Lamater, 
for  the  appellants. 

Alfred  B.  CJiacc,  District  Attorney  (/I.  Frank  B.  Chacc,  of 
counsel),  for  Ll  o  People. 

CcM.Kx,  J.  The  three  appellants,  with  one  Harvey  Bruce, 
•were  indicted  for  murder  in  the  first  degree,  in  having  felonious- 
ly, willfully,  and  with  malice  aforethought,  and  with  a  delib- 
erate and  premeditated  design  to  effect  his  death,  killed  Peter  A. 
Ilallenbock  on  the  24th  of  DecemlxT,  1901.  The  case  seems  to 
have  been  tried  with  that  degree  of  care  which  should  mark 
every  capital  prosecution,  not  less  in  justice  to  a  defendant 
whose  life  is  at  stake  than  to  the  people,  who  are  interested  that 
in  case  of  the  guilt  of  the  accused  there  shall  be  no  miscarriage 
of  justice  on  account  of  failure  to  comply  with  the  rules  of  law. 
The  result  is  that  the  record  before  us  is  quite  free  from  even 
controversial  questions,  the  rulings  of  the  trial  court  which  have 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 

Vol.    XIII— 17 


Wi 


iiii!'  ' 


l\,lr 


Hi'), 

w 

'il 


■:||li[  1  I 


258 


AMERICAN  CRIMINAL  REPORTS. 


boon  challenged  on  this  appeal  being  well  sustained  both  by 
principle  and  by  authority.  As  the  learned  counsel  for  the  aji- 
pellants  contends  that  the  evidence  was  insufficient  to  warrant 
a  verdict  of  murder  in  the  first  degree,  it  is  necessary  to  narrate 
the  occurrence;  but  that  narration  need  be  but  of  the  briefest 
character,  since  one  or  two  pivotal  facts  conclusively  prove  the 
crime  and  its  degree. 

The  deceased  was  a  farmer,  aged  55  years,  who  resided  on 
his  farm,  some  3  miles  southeast  of  the  c'ty  A  Hudson.  The 
appellants  were  the  nephews  of  his  wife,  and  aged,  respectively, 
20,  22,  and  26  years.  Their  father  was  dead,  and  at  the  time 
of  the  commission  of  the  crime  they  resided  with  their  step- 
mother at  Kinderhook,  alwut  12  miles  northeasterly  from  Hud- 
son. They  had  formerly  lived  on  a  fann  in  the  vicinity  of  that 
of  the  deceased.  On  this  farm  the  deceased  held  a  mortgage, 
which  he  foreclosed ;  and  after  the  sale,  and  in  the  September 
before  the  murder,  the  ap]iellants,  with  their  stepmother,  had 
moved  to  Kinderhook.  One  of  the  appellants  expressed  hos- 
tility to  the  deceased  on  account  of  this  foreclosure,  and  threat- 
ened "to  get  even  with  him,"  and  to  one  witness  stated  he  would 
kill  him.  The  codefondant  Ilarvev  Bruce  was  their  cousin, 
who  had  been  spending  some  time  in  the  home  of  the  appellants 
at  Kinderhook.  The  family  of  the  decea'^ed  consisted  of  him- 
self, his  wife,  his  mother,  a  brother,  Charles  Ilallenbeek,  and 
his  wife  and  a  hired  man.  These  persons  resided  at  the  farm- 
house. On  Christmas  Eve,  1901,  the  brother,  with  his  wife  and 
the  hired  man,  attended  some  fcvStivities  in  the  church,  about  a 
mile  distant,  leaving  the  deceased,  with  his  wife  and  mother,  i:i 
the  hrmse.  About  hall-past  7  o'clock  the  deceased  and  his  witV- 
were  in  the  sitting  room,  the  former  reading.  His  mother,  a 
woman  of  80,  had  just  gone  upstairs  to  her  room.  A  knock 
Avas  heard  at  the  kitchen  door,  and  the  deceased  arose,  went  into 
the  kitchen,  and  opened  the  door.  According  to  the  testimony 
of  the  wife,  four  men,  with  masks  on,  and  with  revolvers  in  their 
hands,  entered,  and  eomiiience<l  to  shoot  at  her  husband.  She 
went  into  the  kitchen,  and,  being  frightened,  rushed  away 
through  her  bedroom,  and  upstairs  to  the  attic,  where  she  and 
the  mother  of  the  deceased  barricaded  the  doors.  She  testified 
that  the  men  shot  at  her  as  she  ran  away.  Ifr.  Elting,  a  farmer 
residing  alx)Ut  300  yards  away,  heard  the  noise  of  the  firing, 
and  saw  a  wagon  driven  rapidly  downi  the  road.     At  once  he 


PEOPLES  V.  VAN  WORMER  ET  AL. 


259 


went  ovrer  to  the  Ilallenbeck  house,  and  found  the  kitchen  door 
open,  and  a  light  burning  brightly.  He  called  for  the  deceased, 
but  got  no  reply.  He  then  went  to  another  neighbor — Mr.  Betts 
— and  both  entered  the  Hallcnbeck  house.  They  found  Peter 
A.  Hallcnbeck  lying  dead  on  the  kitchen  floor,  the  clothing  on 
his  arm  burning.  They  put  out  this  fire,  and  called  to  the 
mother  and  wife  of  the  deceased,  who,  recognizing  their  voices, 
came  doAvnstairs.  Then  word  of  the  tragedy  was  sent  to  the 
people  at  the  church,  who,  in  some  numbers,  shortly  appeared 
upon  the  scene.  Word  was  also  sent  to  the  sheriff  and  coroner 
of  the  county,  and  the  chief  of  police  at  Hudson.  What  di- 
rected suspicion  to  the  defendants,  and  what  circumstances 
tended  to  identify  them  as  the  persons  who  had  shot  the  de- 
ceased, it  is  imnecessary  to  narrate,  for,  though  all  at  first  denied 
any  complicity  in  the  transaction,  Bruce — one  of  the  party, 
turned  informer — and  upon  the  trial  was  a  witness  for  the  prose- 
cntitm.  Each  of  the  appellants  went  on  the  stand  in  his  o\vn 
behalf,  and  admitted  that  he  was  one  of  the  persons  who  shot 
tlic  deceased.  Their  statements  are  substantially  the  same.  It 
is  that  they  drove  from  Kinderhook  to  the  Hallcnbeck  house,  a 
distance  of  some  15  miles,  'io  have  some  ^un  with  him  [the  de- 
ceased] ;  to  scare  him" ;  that  solely  with  this  intent,  and  without 
any  design  to  injure  the  deceased,  when  they  arrived  at  the  bam 
they  put  on  the  nuisks,  they  turned  their  coats  inside  out,  and 
each  with  a  revolver  in  his  hand  went  to  the  kitchen  door ;  that 
when  the  deceased  opened  the  door  he  seized  the  appellant  Bur- 
ton Van  Wormer  by  the  throat,  and  struck  him  in  the  face ;  that 
in  the  scuffle  Burton's  revolver  was  dischargetl,  and  then  a  gen- 
eral fusillade  ensued;  that  deceased  went  for  a  gim  which  lay 
on  a  rack  in  the  kitchen,  and  thereupon  they  ran  away.  Bruce, 
the  informer,  testified  that,  ns  they  drove  home,  two  of  them 
boasted  of  how  they  had  shot  the  deceased.  But  it  is  not  neces- 
sary to  rely  on  Bruce's  statements.  It  is  suificient  to  say  that 
there  were  8,  if  aot  9,  bullet  wounds  on  the  body  of  the  deceased ; 
that  0  bullets  were  taken  from  the  body,  and  2  left  in  it — not 
being  removed  because  they  wore  seated  deep  in  the  tissues. 
Bullets  or  bullet  marks  were  found  in  every  room  on  the  fii'st 
floor,  the  kitchen,  the  sitting  room,  and  the  V^droom  of  the  de- 
ceased and  his  wife.  Altogether,  there  appears  to  have  bei^n  18 
bullets  or  bullet  marks  found  in  or  on  the  deceased,  or  in  the 
walls  and  ceilings  of  the  house.     The  revolvers  were  of  different 


'<!-''"'■ 


(    ( 


{' 


i^  > 


260 


AMERICAN  CRIMINAL  REPORTS. 


calibers,  and  bullets  from  each  of  them  were  found  in  the  body 
of  the  deceased.  The  gun  belonging  to  the  deceased  was  found 
lying  across  his  chest,  but  neither  barrel  had  been  discharged. 
In  the  light  of  the  wounds  on  the  deceased,  and  the  number  of 
shots  fired,  it  seems  to  us  wholly  unnecessary  to  discuss  the  suffi- 
ciency of  the  evidence  to  warrant  the  jury  in  finding  that  the 
nuu'dor  was  deliberate  and  premeditated.  In  view  of  these 
facts,  the  story  of  the  appellants,  that  their  expedition  was  sim- 
ply a  boyish  praidi  to  frighten  the  deceased,  surpasses  human 
credulity.  It  is  difficult,  if  not  impossible,  to  see  how  any  con- 
scientious jLiry  could  have  found  a  verdict  other  tlian  that  ren- 
dered. 

It  is  necessary  to  notice  only  two  exceptions  taken  on  the  trial. 
The  appellants  objected  to  the  competency  of  their  codefcnd- 
ant  Bruce  as  a  witness  for  the  proseeution  on  the  ground  that 
he  was  jointly  indicted  with  them,  and  that  tlie  indictment 
against  him  was  still  pending;  n<jt  having  been  disposed  of 
either  by  acquittal  or  nolle  prosequi  or  by  conviction  or  plea  of 
guilty.  At  common  law  a  party  to  the  record  was  not  a  com- 
jietent  witness  either  on  his  o^^^l  behalf  or  on  beh.^lf  of  a  co- 
defendant.  But  the  Vv'eight  of  authority  is  to  the  effect  that  lie 
is  a  competent  witness  for  the  prosecution  against  his  codefend- 
ants,  provided  he  himself  is  not  on  trial  at  the  time.  Mr.  Greon- 
leaf  (1  Evidence,  §  379)  states  the  rule  to  be:  "The  admission 
of  accomplices  as  witnesses  for  the  government  is  justified  by 
the  noces3ity  of  the  case,  it  being  often  impossible  to  bring  the 
principal  offenders  to  j\istice  without  them.  The  usual  course 
is  to  leave  out  of  the  indictment  those  who  art?,  to  Ik?  called  as 
witnesses;  but  it  makes  no  difference,  as  to  the  admissibility  of 
an  accomplice,  whether  he  is  indicted  or  not,  if  he  has  not  l>een 
put  on  his  trial  at  the  same  time  with  his  companions  in  crime." 
Wharton  (Crim.  Ev.  §  439)  and  Starkie  (2  Ev.  §  11)  maintain 
the  same  doctrine,  while  Mr.  Bishop  (Crim.  Proc.  §  1020)  states 
the  rule  to  the  contrary.  An  exhaustive  review  of  the  question 
is  found  in  State  v.  Barrows,  76  Me.  401,  49  Am.  Rep.  629, 
where  it  was  unanimously  held  by  the  Supreme  Court  of  !Mainc 
that,  on  the  separate  trial  of  one  defendant,  a  codefendant  joint- 
ly indicted  with  him  was  a  competent  witness  for  the  prosecu- 
tion. The  question  again  arose  in  Benson  v.  United  States, 
146  U.  S.  325,  13  Sup.  Ct.  60,  36  L.  Ed.  991,  where  the  Su- 
preme Court  of  the  United  States  approved  and  followed  the 


i 


PEOPLE  i;.  VAN  WORMER  ET  AL. 


261 


r 
i  ■ 


decision  in  the  Maine  case;  and  this  though  the  court  had 
previously  held  (U.  S.  v.  Beid,  12  How.  [U.  S.]  361,  13  L.  Ed. 
1023)  that  a  defendant  jointly  indicted  was  not  a  competent 
witness  for  his  codefendant.  It  was  there  said :  "The  precise 
question  in  that  case  was  as  to  the  right  of  the  defendant  to  call 
his  codefendant,  and  not  that  of  the  government  to  call  the  co- 
defendant,  and  a  distinction  has  been  recognized  between  the 
two  cases."  The  point  has  never  been  passed  upon  by  this  court, 
for  in  Lindsay  v.  People,  63  X.  Y.  153,  relied  upon  by  the  ap- 
pellants, it  was  in  no  way  presented  or  involved,.-nor  does  the 
discussion  of  the  opinion  bear  on  it.  The  current  of  the  deci- 
sions in  the  other  courts  of  the  State  is  in  support  of  the  rule 
that  a  codefendant  in  a  joint  indictment  is  a  competent  witness 
for  the  prosecution.  It  was  so  held  in  Wixson  v.  People,  5 
Parker.  Cr.  R.  119;  in  People  v.  Sattcrlee,  5  Hun,  167;  and  in 
Taylor  v.  People,  12  Hnn,  212.  The  only  decis*-u  to  the  con- 
trary is  that  of  People  v.  Donnelly,  2  Parker,  Cr.  R.  182,  which 
was  expressly  overruled  in  the  later  cases.  If,  however,  the 
question  is  to  be  considered  an  open  one  in  this  court,  we  should 
unliesitatingly  adopt  the  nile  declared  in  the  cases  cited,  other 
than  that  of  People  v.  Donnelly.  The  argument  in  its  favor 
stated  by  Chief  Judge  Peters  in  State  v.  Barrows  seems  to  us 
conclusive.  It  is  unquestionable,  under  all  the  decisions  and 
all  the  text-writers,  that,  if  one  of  several  persons  engaged  in 
the  commission  of  a  crime  be  indicted  for  that  crime  in  a  sepa- 
rate indictment,  he  is  a  competent  witness  for  the  prosecution 
against  his  associates,  when  tried  under  an  indictment  for  the 
same  offense.  The  distinction  sought  to  be  drawn,  therefore,  is 
UK  rely  of  form,  and  not  of  substance,  and  the  case  is  not  one  of 
those  where  form  is  necessary  or  justifiable  to  protect  the  sub- 
stance which  lies  behind  it. 

After  the  arrest  of  the  defendants,  their  shoes  were"  taken  from 
them  and  placed  in  the  footmarks  leading  to  the  house  of  the 
deceased,  made  in  the  newly  fallen  snow  on  the  night  of  the 
murder  by  the  parties  who  went  to  the  kitchen  door.  The  shoes 
corresponded  in  all  respects  with  the  footprints,  and  evidence  of 
this  fact,  against  objection  and  exception  of  the  appellants,  was 
admitted.  It  is  contended  that  the  seizure  of  the  shoos  and  their 
comparison  with  the  footprints  compelled  the  defendants  to  be 
witnesses  against  themselves,  and  violated  their  constitutional 
safeguard.     This  claim  is  entirely  disposed  of  by  the  decision 


ii 


)  1 


■i- 


ii 


262 


AMERICAN  CRIMINAL  REPORTS. 


of  this  court  in  People  v.  Gardner,  144  N.  Y.  119,  38  X.  E. 
1003,  28  L.  K.  A.  G99,  43  Am.  St.  Rep.  741.  It  was  there  hekl 
that  the  constitutional  protection  tliat  no  one  can  be  compelled 
to  be  a  witness  against  himself  (Const,  art.  1,  §  6)  prohibited 
"the  compulsory  oral  examination  (doubtless  written  examina- 
tion, also)  of  prisoners  before  trial,  or  upon  trial,  for  the  pur- 
pose of  extorting  unwilling  confessions  or  declarations  implicat- 
ing them  in  crime,"  but  that  "a  murderer  may  be  forcibly  taken 
before  his  dying  victim  for  identification,"  "a  thief  may  bo 
forcibly  examined,  and  the  stolen  property  may  be  taken  from 
his  person,"  %nd  "a  prisoner  may  be  examined  for  marks  and 
bruises,  and  then  they  may  be  proved  upon  his  trial  to  establish 
his  guilt." 

The  judgment  of  conviction  should  be  affirmed. 

Pakkek,  C.  J.,  and  Gray,  O'Buien,  Vann,  and  Webnek, 
JJ.,  concur.     Baktlett,  J.,  absent. 

Judgment  of  conviction  affirmed. 

Note  (By  J.  F.  G.). — Evidence  obtained  by  compelling  one  to  take 
a  pistol  from  his  pocltet,  Is  not  competent  in  a  charge  of  carrying  con- 
cealed weapons,  Evans  v.  State,  lOG  Ga.  519,  11  American  Criminal 
Reports  695,  71  Amer.  State  Rep.  276,  32  S.  E.  Rep.  659. 

Requiring  accused  to  stand  up  at  his  trial  thereby  showing  the  loss 
of  a  portion  of  one  of  his  legs,  so  as  to  corroborate  certain  evidence, 
held,  to  be  reversible  error,  Blackwell  v.  State,  67  Ga.  76,  4  Amer. 
Crim.  Rep.  183. 

Even  giving  the  accused  the  option  to  put  his  foot  in  a  pan  of  mud, 
in  the  presence  of  the  jury,  is  reversible  error.  Stokes  v.  State,  5 
Baxt.   (Tenn.)  619,  30  Am.  Rep.  72. 

See  also,  notes, — 11  American  Criminal  Reports  698-700. 


State  v.  Cobb. 


65  S.  C.  324—43  S.  E.  Rep.  654. 

Decided  March  11th,  1903. 

Homicide — Mubdeb:     Instruction  as  to  provoking  an  affray  loith  the 

deceased — Practice,  when  evidence  is  not  printed 

in  the  brief. 

1.  In  a  case  of  mutual  hatred,  if  one  of  the  parties  deliberately  pre- 
pares to  kill  his  adversary,  and  then  Insults  him  for  the  purpose 


For  oa»es  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


-M' 


STATE  V.  COBB. 


263 


of  bringing  on  an  affray,  as  an  excuse  foe  killing  him,  and  in  such 
affray  does  kill  him,  the  case  is  one  of  murder. 
2.  Where  the  evidence  was  not  printed  in  the  brief  it  will  be  presumed 
that  the  instructions  were  applicable. 

Appeal  from  General  Sessions  Circuit  Court  of  Cherokee 
Count v;  Hon.  Kichard  C.  Watts,  Judge. 

Son  Cobb,  convicted  of  murder,  appeals.     AflBrmed, 

Butler  cC'  Osborne  and  N.  W.  Hardin,  for  appellant. 

Assistant  Attorney  General  Townsend,  for  the  State. 

Woods,  J.  The  appellant.  Son  Cobb,  was  convicted  of  mur- 
der, with  recommendation  to  mercy,  at  the  March  term,  1902, 
of  the  Court  of  General  Sessions  for  Cherokee  county,  and  was 
sentenced  to  life  imprisonment. 

The  exceptions  allege  several  errors  in  the  charge  of  the  pre- 
siding judge,  but  they  were  all  abandoned  in  the  argument, 
except  the  second,  which  is  as  follows: 

''(2)  For  error  in  the  instruction  to  the  jury,  as  follows: 
'If  a  man  makers  preparation  with  deliberation  that  way  to  go 
and  riii-;e  a  row  with  the  other,  with  the  intention  of  killing  tlie 
other  if  the  other  resents  the  insult  or  strikes  him,  and  he  kills 
him,  that  is  murder' ;  the  error  herein  being  this :  The  defend- 
ant herein,  by  so  charging,  was  cut  off  from  the  plea  of  self- 
defense  in  the  minds  of  the  jury,  and  the  jury  might  have  rea- 
sonably inferred  that  the  'other'  might  'resent  the  insult  or 
strike  him'  in  tlu!  most  violent  manner,  endangering  the  life  of 
the  'man,'  and  he  would  have  no  right  to  kill  'the  other'  to  save 
his  o\m  life." 

The  sentence  to  which  appellant  takes  exception  occurs  in  the 
following  paragraph  of  the  charge : 

"Now,  the  law  is  this :  That  if  two  men  have  bad  blood  to- 
wards each  otlijer,  and  one  goes  and  prepares  himself  to  take  the 
life  of  the  other,  and  does  it  with  the  intention  of  saying  some- 
thing to  the  other  man  to  provoke  him  to  resent  any  insult  or  to 
pick  a  TOW,  and  he  has  got  ready  for  it,  and  intends  to  take  life 
as  soon  as  he  says  something  to  the  other  fellow  and  the  other 
fellow  resents  it — if  a  man  kills  another  under  circumstances 
of  the  kind,  he  is  guilty  of  murder,  because  there  is  a  delibera- 
tion and  preparation  beforehand  to  take  life ;  the  intention,  if  the 
man  does  resent  it,  he  has  prepared  himself  to  kill  him.     lie 


T' 


!'{ 


V!'.  . 


hfaMIMIiaM 


264 


AMERICAN  CRIMINAL  REPORTS. 


Las  brought  on  the  attack.  If  a  man  makes  preparation  ivith 
deliberation  that  way  to  go  and  raise  a  row  with  the  other,  with 
the  intention  of  killing  the  other  if  tlie  other  resents  the  insult 
or  strikes  him,  and  he  kills  him,  that  is  murder.'* 

The  correctness  of  this  interpretation  of  the  law  is  no  longer 
subject  to  controversy  in  this  State,  i^tate  v.  Beckham,  2-4  S.  C 
284. 

The  appellant  insists  that,  if  the  charge  in  this  respect  was 
correct,  it  was  not  applicable  to  the  case.  The  evidence  is  not 
printed  in  the  brief  submitted  to  the  court,  and  we  therefore 
must  assume  the  charge  was  appropriate  to  the  case  before  the 
court. 

The  judgment  of  this  court  is  that  the  judgment  of  the  Circuit 
Court  be  affinned. 


Homicide: 


State  v.  Su:krpTER. 

153  Mo.  436—55  S.  W.  Rep.  76.     ' 

Decided  January  23,  1900. 

Evidence — Instruction — Record — Witness    in    court    room 
during  trial. 


Defendant  had  been  paying  attention  to  deceased's  daughter,  con- 
trary to  his  wishes,  and  had  followed  deceased  and  his  family  to 
church,  and  accompanied  the  daughter  Into  the  building.  On  the 
way  home,  defendant  made  the  remark  that  he  intended  to  "get  de- 
ceased before  night."  Next  morning  defendant  went  to  deceased's 
home,  and  while  conversing  with  the  daughter  and  her  mother,  the 
mother  asked  him  If  he  had  threatened  to  kill  deceased,  and,  if  ho 
had  done  so,  he  must  go  down  to  the  field  where  deceased  was,  and 
talk  nice  to  him;  that,  If  he  would,  it  would  make  it  all  right. 
Thereupon  defendant  started,  saying,  "I  have  got  a  pistol,"'  and  a 
permit  to  carry  it.  On  going  up  to  deceased,  he  said,  "Hello,  Eli;" 
but  deceased  made  no  reply.  After  going  about  10  feet  further,  de- 
fendant said,  "Didn't  I  tell  you  I  was  going  to  kill  you?"  At  this 
deceased  started  towards  defendant,  who  fired  twice,  killing  de- 
ceased. Defendant  pleaded  self-defense,  stating  deceased  started 
towards  him  with  an  ax,  when  he  killed  him  to  save  himself.  The 
evidence  outside  of  that  of  defendant  made  out  a  clear  case  of 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


Tr 


STATE  V.  SUMPTER. 


265 


murder  In  the  first  degree.  Held,  that  an  Instruction  on  man- 
slaughter In  the  fourth  degree  was  properly  refused. 

2.  Whore  the  record  fails  to  show  an  order  excluding  witnesses  from 

.he  court  room,  an  alleged  error,  that  a  witness  was  permitted  to 
testify  after  having  remained  In  the  court  room  In  violation  of 
such  order,  is  not  reviewable. 

3.  Evidence  will  not  be  excluded  because  a  witness  remained  in  the 

court  room  after  an  order  of  the  court  directing  all  witnesses  to 
withdraw  until  called,  where  it  does  not  appear  that  such  act  of 
the  witness  was  with  the  connivance  of  the  party  calling  him. 

Supremo  Court  of  ^lissourl,  Division  No.  2. 

Aj)iieal  from  Circuit  Court,  Howard  County;  Hon.  John  A. 
llcjckailay,  Judge. 

-lode  Sumptcr,  convicted  of  murder  in  the  second  degree,  ap- 
peals.    Affirmed. 

Bation  &  Talbot,  for  the  appellant. 

Edward  C.  Crow,  Attorney  General,  and  Sam  B.  Jeffries,  for 
the  State. 

SuKinvooD,  J.  .7 ode  Sunipter,  the  defendant,  was  indicted 
for  murder  in  the  first  degree,  by  shooting  to  death,  with  a  pistol, 
Eli  JIursman.  The  circtimstances  attendant  on  the  sad  alFair 
are  sufficiently  set  forth  in  the  statement  made  on  Ixlialf  of  the 
State:  Eli  Iliirsman  was  a  farmer  living  in  Howard  County, 
t'uis  f^ti.'o.  His  family  consisted  of  himself,  his  .wife,  and  sev- 
'  .  .  -.^i^hters  and.  sons.  The  defendant  had  for  some  time  past 
i  •*•  V,  vjrking  for  him,  with  the  exception  of  three  weeks  imnicdi- 
a  prior  to  the  homicide.  He  was  exceedingly  intimate  with 
the  family  of  llursman,  and  always  alluded  to  him  as  ''Daddy" 
when  talking  of  or  concerning  him.  F(n'  some  time  past,  it  ap- 
];ears.  he  had  been  paying  attention  to  one  of  the  daughters  of 
the  deceased,  ^vhich  did  not  meet  with  Hursman's  apjjrobation. 
On  this  account  he  was  discharged  from  the  em])l<)yment  of 
llursman,  and  commenced  working  for  a  neighbor  near  by.  On 
Sunday  morning  of  the  8th  day  of  May,  Hursman,  with  his 
family,  attended  church  at  Newhope,  not  far  distant  from  his 
residence,  defendant  following  on  horseback.  On  arriving  at 
the  church,  defendant  accompanied  Hursman's  daughter  into 
the  building,  where  they  remained  imtil  after  services.  He  was 
requested  by  the  mother  of  the  young  lady  not  to  do  so,  as  it 


!r:i 


266 


AMERICAN  CRIMINAL  REPORTS. 


would  cause  trouble  between  him  and  her  husband ;  l)esides,  tlic 
young  lady,  knowing  that  her  father  did  not  desire  her  to  asso- 
ciate herself  with  defendant,  made  herself  liable  to  chastiswiu  iit 
by  him.  On  tlie  road  home  defendant  made  the  remark  tiiat  he 
intended  to  get  Hursman  before  night.  This  remark  was  in- 
duced on  account  of  the  defendant's  apprehension  that  tlio  de- 
ceased would  reprimand  his  daughter  for  going  widi  him.  The 
next  morning,  the  9th  of  May,  the  defendant  went  on  horsobat-k 
to  the  home  of  Hursman,  ostensibly  going  up  the  road  a  short 
distance  to  a  country  store  to  get  some  chewing  tobacco.  On 
his  way  he  stopped  at  the  house,  arid  engaged  in  cimvcrsation 
with  the  young  lady  and  her  motlier.  Mrs.  Hursman  stat<Hl  in 
her  testimony  tliat  she  asked  him  at  this  time  if  he  liad  threat- 
ened to  kill  his  "Daddy,"  meaning  her  husband,  and  that  if  he 
did  not  threaten  to  kill  him  he  must  go  down  to  where  he  was 
in  the  field,  and  talk  to  him  nice,  for  he  had  heard  that  defend- 
ant had  threatened  to  kill  him,  and  was  feeling  very  bad  alndit 
it;  that,  if  he  would  go  down  and  talk  to  him,  it  would  make 
it  all  right  between  them.  As  S(x;n  as  ho  was  advised  by  Mrs. 
Hursman  to  talk  to  her  husband,  the  defendant  started  down  the 
road  in  that  direction,  and  as  he  departed  lie  remarked,  "1  have 
got  a  pistol,"  and  said  he  had  a  permit  to  carry  it.  Defendant 
proceeded  to  the  field,  where  he  found  Hursman.  On  coming 
up  to  him  he  said,  "Hello,  Eli."  Hursman  made  no  reply,  and, 
after  Sumpter  had  ridden  on  about  10  feet,  he  said  to  the  div 
ceased,  "Didn't  I  tell  you  I  was  going  to  kill  you  ?"  At  this 
Hursn;an  stopped  his  team,  wrapped  the  lines  around  the  plow 
handle,  and  started  towards  the  defendant.  Defendant,  raising 
his  pistol,  fired.  As  soon  as  the  first  shot  was  fired,  Hursman 
threw  his  hands  to  his  breast,  and  turned  around,  when  the  sec- 
ond shot  was  fired.  Defendant  then  turned,  and  rode  rapidly 
away.  One  of  the  shots  took  effect  in  the  breast  of  Hursman, 
the  other  in  the  head,  which  proved  fatal,  death  resulting  in  15 
or  20  minutes.  Self-defense  was  defendant's  plea,  he  stating 
that  Hursman  started  towards  him  with  an  ax,  when  he  killed 
him  to  save  himself.  With  the  exception  of  defendant's  own 
testimony,  the  evidence  of  the  homicide  was  all  one  way,  and 
made  out  a  clear  case  of  murder  in  the  first  degrea  The  jury, 
however,  found  defendant  guilty  only  of  murder  in  the  seoond 
degree,  asseswng  his  punishment  at  the  lowest  term  of  imprison- 
ment in  the  penitentiary,  to-wit,  10  years. 


TT 


STATE  V.  SUMPTEll. 


267 


H 


Defendant  is  not  represented  by  counsel  in  this  court,  and  we 
can  only  to  some  extent  conjecture,  froni  the  motion  for  a  new 
trial,  what  grounds  of  complaint  are  relied  upon  as  causes  for 
a  reversal  of  the  judgment.  The  instructions  given  on  the  part 
of  the  State  were  very  full,  embracing,  in  approved  form,  mur- 
der in  the  iii*8t  and  second  degrees,  and  also  self-defense.  Seven 
instructions  asked  on  behalf  of  defendant  as  to  self -defense,  etc., 
wevo  given,  and  were  very  favorable  to  defendant.  Defendant 
asked  an  instruction  on  manslaughter  in  the  fourth  degree, 
which  the  court  refused  to  give,  and  we  think  properly  refused, 
as  we  sec  nothing  in  the  testimony  warranting  such  an  instruc- 
tion. Xor  do  we  see  that  any  error  occurred  in  the  admission  of 
testimony  or,  if  there  was,  the  testimoney  was  either  immaterial, 
or  the  i)ropcr  objections  were  not  made. 

Relative  to  Charles  Ilursman  having  erroneously  been  per- 
mitted to  testify,  after  having  remained  in  the  court  room,  in 
violation  of  the  order  of  the  court,  it  is  sufficient  to  say,  that  the 
record  fails  to  show  an  order'excluding  witnesses  from  the  court 
room.  Besides,  bad  there  been  such  an  order,  the  violation  of 
the  order,  if  a  mere  inadvertence  on  the  part  of  the  witness,  and 
not  done  through  the  connivance  of  the  party  by  whom  he  was 
called,  would  be  no  ground  for  his  rejection.  2  Bish.  New  Cr. 
Proc.  §«5  111)1,  1 193 ;  O'Bryan  v.  Allen,  95  Mo.  68,  8  S.  W.  225. 
Finding  no  error  in  the  record,  we  order  the  judgment  to  stand 
affirmed.     All  concur. 

Note. — As  to  right  to  confer  with  witnesses  during  trial;  and  as  to 
separation  of  witnesses,  see:  12  Amer.  Crim.  Rep.  616,  631,  634,  635, 
636. 

The  names  of  counsel  for  appellant  appear  In  The  Southwestern  Re- 
porter, but  not  In  the  official  report. 


\^M 


.i' 


268  amer:c.\n  criminal  reports. 

* 

State  v.  Krause. 

153  Mo.  474—55  S.  W.  Rep.  70. 

Decided  Janary  23,  1900. 

Homicide:     Evidence  sustaining  conviction  for  murder  in  the  second 

degree. 

Defendant,  deceased,  and  two  others  had  been  playing  cards.  De- 
ceased's partner  accused  defendant  of  cheating.  A  dispute  ensued,  and 
defendant  and  deceased  left  the  room  together.  Later,  deceased  was 
discovered  dead.  Defendant  did  not  deny  committing  the  act,  but 
pleaded  self-defense, — saying  that,  as  he  came  down  the  steps  of  the 
house,  deceased  assaulted  him,  threw  him  down,  and  threatened  to  kill 
him;  that  while  in  that  position  he  put  his  hand  in  his  pocket,  drew 
out  his  knife,  opened  it,  and  struck  at  deceased.  Held  sufficient  to. 
support  a  conviction  of  murder  in  the  second  degree. 

Supreme  Court  of  Missouri,  Division  No.  2. 

Appeal  from  St.  Louis  Circuit  "Court ;  lion.  John  A.  Talty, 
Judge. 

Joseph  Krause,  convicted  of  murder  In  the  second  degree,  ap- 
peals.    Affirmed. 

Chas.  P.  Johnson  and  John  Maurer,  for  the  appelhmt. 

Edward  C.  Crow,  Attorney  General,  and  Sam  B.  Jeffries,  for 
the  State. 

Shekwood,  J.  Ten  years'  imprisonment  in  the  penitentiary 
being  awarded  defendant  on  conviction  of  murder  in  the  second 
degree,  he  has  apjiealed  to  this  court. 

Defendant  is  not  represented  in  this  court,  and  the  only  thing 
to  show  the  views  of  his  counsel  is  contained  in  the  motion  for  a 
new  trial. 

The  case,  in  substance,  is,  as  stated  by  the  attorney  general, 
as  ioUows : 

"On  the  night  of  the  21st  day  of  May,  1898,  defendant,  who 
lived  with  his  parents  on  O'Fallon  street,  near  Tenth,  in  St. 
Louis,  was  invited  to  participate  in  a  game  of  cards  at  the  home 
of  ^Irs.  Fred  Urban.  There  were  present  Mr.  and  Mrs.  Urban, 
Fred  Spitzfaden,  Otto  Mabus,  the  deceased  (Frank  Sehwandt), 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


STATE  V.  KRAUSB. 


269 


and  defendant.  For  a  short  while  during  the  evening,  defend- 
ant's fatlior  was  also  present.  The  game  commenced  a!x)ut  9 
o'clock,  and  continued  until  after  midnight.  Urban  ana  de- 
ceased were  partners  against  defendant  and  Spitzfaden.  ihey 
were  playing  for  a  fifteen-cent  wager.  Urban  accused  the  de- 
fondant  of  looking  at  the  bottom  card  in  the  deck  each  time  it 
camo  liis  turn  to  deal.  This,  defendant  denied,  though  he 
admitted  it  to  be  true  while  on  the  witness  stand.  Hot  words 
ensued,  in  which  tliey  Ijecame  very  abusive.  They  both  arose 
from  the  table,  and  attempte<l  to  strike  each  other,  when  they 
were  separated.  Decease<l  and  defendant  left  the  room,  and 
in  alxnit  three  minutes  defendant  returned  to  the  door,  and 
called  for  his  hat  and  coat,  which  were  handed  him  by  Mrs. 
Urban.  The  room  in  which  the  i)arty  had  been  having  their 
game  was  on  the  third  floor  of  the  building.  About  Ave  minutes 
after  <lcfondant  had  left,  som(^  one  in  the  party  inquired  about 
deceased.  Urban  went  out,  and  down  the  steps,  to  ascertain  his 
wherealwuts.  On  reaching  the  porch  of  the  first  floor,  he  found 
Schwandt  lying  dead  on  the  floor,  with  a  wound  in  his  head, 
caused  by  a  stab  from  defendant's  knife.  Just  prior  to  this, 
defendant  was  scon  to  run  across  the  street,  and  into  the  rear 
of  his  father's  house.  He  did  not  remain  there,  but  went  im- 
mediately to  Xorth  St.  Louis,  where  he  remained  until  late  the 
next  evening,  when  he  returned  and  surrendered  voluntarily  to 
the  oftic4'rs.  He  does  not  deny  conmiitting  the  act,  but  asserts 
that  he  inflicted  the  fatal  wound  in  necessary  self-defense; 
that,  as  he  came  down  the  steps  at  the  Urban  home,  deceasetl 
a'ssaulted  him,  threw  him  down,  and  threatened  to  kill  him; 
that  while  in  this  [xwition  he  put  his  hand  in  his  pocket,  drew 
out  the  knife,  ojiencnl  it,  and  struck  at  the  deceased.  He  did 
not  know  that  the  stroke  had  ^roved  fatal  imtil  the  following 
day,  when  be  saw  an  account  of  the  tragedy  in  tko  daily  papers 
of  St.  Ij<mis."  The  evidence  was  ample  to  support  a  conviction, 
and  the  instructions  such  aa  are  usually  given.  Discovering  no 
error  in  the  record,  judgment  affirmed.    All  concur. 

Note — The  names  of  counsel  for  appellant  appear  In  the  South 
Western  Reporter,  but  not  in  the  official  report, 


im 


m 


no 


AMERICAN  CRIMINAL  REPORTS. 


BniDOEWATER  V.  StATE. 

153  Ind.  560—56  N.  B.  Rep.  737. 

Decided  December  12,  1899. 

Homicide:  Distinction  between  murder  in  the  second  degree  and  man- 
slaughter—Malice—Use  of  deally  weapon— "Provocation"— 
Jurors  judges  of  law— Evidence— lnatruction$— Articles  attached 
to  bill  of  exceptions. 

1.  "The  difference  between  murder  in  the  second  degree  and  man- 

slaughter, as  these  crimes  are  defined  by  statute,  is  that  In  the 
former  the  killing  Is  done  purposely  and  maliciously,  but  without 
premeditation;  in  the  latter,  the  killing  is  unlawful,  without 
malice,  express  or  implied,  either  voluntarily,  upon  a  sudden  heat, 
or  involuntarily,  but  in  the  commission  of  some  unlawful  act." 

2.  The  accused,  who  was  Jealous  of  his  wife,  came  suddenly  upon  her 

and  one  Whorton,  they  having  just  returned  from  a  picnic  to- 
gether and  were  standing  talking  in  the  lear  of  the  house  where 
she  was  employed,  Whorton  stepped  back  at  the  approach  of  the 
accused,  a  sudden  encounter  took  place  In  which  Whorton  was 
stabbed  eight  times  by  accused  and  died  immediately.  The  men 
were  strangers.    Whorton  was  not  armed. 

3.  "The  time  and  circumstances   of  the   attack;    its  suddenness  and 

ferocity;  the  weapon  used;  the  number  and  character  of  the 
wounds;  their  location — unmistakably  indicate  a  relentless  purpose 
to  kill,  coupled  with  an  intense  malice." 

4.  The  use  of  a  deadly  weapon  does  not  of  Itself  create  a  presumption 

of  malice;  but  where  one  is  used  in  a  manner  likely  to,  and  caus- 
ii.^:  death,  act  presumes  malice. 

5.  The  Coi."t  did  not  err  In  the  following  instruction:  "And  if  you, 

and  each  of  you,  are  satisfied,  beyond  a  reasonable  doubt,  that  the 
defendant  did  willfully  kill  the  said  Olllster  Whorton,  but  the 
same  was  done  without  malice,  express  or  implied,  and  without 
premeditation,  voluntarily,  then  you  may  find  the  defendant  guilty 
of  manslaughtei." 
C.  In  an  instruction  defining  manslaughter  the  word  "provocation" 
should  be  qualified  as  adequate  or  sufficient  provocation. 

7.  Under  the  constitution  the  jurors  are  the  Judges  of  the  law.    The 

Court  Instructed  that  they  were  Judges  of  the  law  but  refused  to 
state  to  them  that  the  court's  instructions  were  merely  advisory; 
held,  no  error. 

8.  Verbal  descriptions  of  articles  used  in  evidence  are  sufficient  in  a 

bill  of  exceptions.  An  article  of  clothing  or  a  knife  ought  not  to 
be  attached  to  the  bill  of  exceptions. 


For  cases  In  previous  volumes  on  any  subject,  r-ie  Table  of  Topics  in 
this  volume. 


BRIDGE  WATER  f.  STATE. 


m 


Appeal  from  rriniinnl  Court,  Marion  County;  Tlon.  Frank 
!M('(Va,y,  Jud^f. 

William  Uridpowator,  convicted  of  murder  in  the  second 
degree,  appeals.     Affirmed. 

KcfiUnp  cf-  Iliifjg,  John  (J.  Ruch'lhnus,  and  John  W.  Bowles, 
iov  the  appolhuit. 

ir.  L.  Taylor,  Attorney  General,  A.  E.  DIckoy,  Merrill 
Moores,  C.  C.  Hadley,  and  Max  I).  Eber,  for  the  State. 

Dowi-iNo,  J.  Tndiotnient  for  murder  in  the  first  de|?ree. 
Trial,  and  verdict  of  jfuilty  of  murder  in  the  second  degree. 
Md'tion  for  new  trial  overruled,  and  judgment  on  verdict.  De- 
ft iidant  below  appeals. 

The  insufficiency  of  the  evidence  to  sustain  the  verdict,  and 
error  of  law  in  giving  and  refusing  to  give  instructions,  are  the 
grounds  relied  ui)<)n  for  a  reversal  of  the  judgment.  Counsel 
for  appellant  do  not  deny  that  the  evidence  supports  a  finding 
of  guiUy,  hut  they  insist  that  it  d(X}s  not  sustain  a  finding  of 
guilty  (►f  murder  in  the  second  degree. 

The  difference  l)etween  murder  in  the  second  degree  and 
manslaughter,  as  these  crimes  are  defined  by  statute,  is  that  in 
the  former  the  killing  is  done  purposely  and  maliciously,  but 
withfMit  premeditation ;  in  the  latter,  the  killing  is  unlawful, 
without  malice,  express  or  implied,  either  voluntarily,  upon  a 
sud(l(  n  heat,  or  involuntarily,  but  in  the  commission  of  some 
mdawful  act. 

The  inquiry  upon  this  branch  of  the  case  is  re<luced  to  the 
question  whether  there  is  any  evidence  in  the  record  showing 
that,  in  taking  the  life  of  the  (leceastnl,  the  appellant  did  so  pur- 
posely and  maliciously. 

The  facta,  greatly  condensed,  are  as  follows:  The  appellant, 
Bridgewater,  wa^s  a  married  man,  and  was  jealous  of  his  wife. 
His  distrust  had  involved  him  in  one  or  more  difficulties  before 
the  occurrence  of  the  homicide  for  Avhich  he  was  convicted. 
Appellant  and  his  wife  kept  house,  but  she  was  employed  as 
a  domestic  servant  at  a  residence  some  distance  from  her  own 
home,  and  usually  remained  all  the  day,  and  sometimes  all  night, 
at  the  place  where  she  was  so  employed.  On  leaving  appellant's 
house  on  Sunday  morning,  August  15,  1897,  appellant  asked 
his  wife  to  come  back  that  afternoon,  but  she  would  not  promise 


i    i]\M 


.  ^:  J, 


I , 


H  '  1' 

1 

1  '' 

i  ' 

i 

272 


AMERICAN  CRIMINAL  REPORTS. 


to  do  so.  Witliciit  the  knowledge  of  appellant,  in  comjianv 
vitli  two  other  women  and  two  men,  of  whom  the  deceased 
was  one,  she  went  to  a  picnic  at  a  place  called  "Crow's  Nest." 
north  of  Indianapolis,  near  Ikoad  Ri]>ple;  retnming  from 
thence  at  ahont  8  o'ckn-k  in  the  evening,  in  a  snrrey,  with  tin? 
other  niendMV.s  of  the  party.  The  deceased,  Ollistcr  Wharton, 
acconipaiii(jil  Mrs.  Bridgewater  irom  the  snrrey  across  a  vacant 
lot  to  the  rear  of  the  residence  where  she  was  employed.  She 
sat  do^\•n  on  a  bench,  and  Wharton  stood  in  front  of  her,  talk- 
ing to  her,  for  ]ierlia])s  five  niinntcs.  Appellant  approached 
them,  but  his  wife  failed  to  recognize  him,  the  night  being  a 
very  dark  one.  On  the  near  approach  of  a])pellant,  Wharton, 
Avho  was  a  total  stranger  to  apj)ellant,  stepped  back.  Instantly 
the  men  clinched.  A  short  struggle  took  jilace  between  them. 
A  moment  later,  Wharton  rnshed  back  to  the  persons  he  had 
jnst  left,  saying,  "1  am  cnt."  lie  fell  on  the  grass,  and  di(  <1 
almos*'  immediately.  Eight  wounds  were  found  on  his  Ixxly, 
one  of  them  [.onetrating  his  heart,  and  three  of  them  being  in 
his  back.  Wharton's  watch,  with  a  broken  I'hain  attached,  was 
afterwards  found  on  the  ground  at  the  place  where  the  struggle 
occurred.  Appellant's  hat  was  discovered  on  the  porch.  The 
appellant  fled  to  Chicago,  where  he  was  afterwards  recognized 
and  arrested.  The  knife  with  which  the  homicide  was  com- 
mitted was  a  large  pocketknife.  Statements  made  by  ajipellant 
to  the  officers  who  arrested  him  were  proved  on  the  trial,  and 
in  them  he  asserted  that  as  he  went  onto  the  jwrch,  where  his 
wife  was  sitting,  he  was  struck  behind  the  ear;  that  the  blow 
dazed  him;  that  he  clincheil  with  his  assaihnt,  got  out  his 
knife,  and  cut  him  once  or  twice;  that  he  broke  loose,  and  that 
both  of  them  got  Cif  the  porch;  that  they  struggled  with  ea<'h 
other  again,  until  they  came  to  a  small  pile  of  sand;  that 
appellant  fell  on  the  sand,  with  Wharton  upon  him;  and  thi'.t 
he  rolled  Wharton  over,  and  cut  him  again.  There  was  n<> 
evidence  that  appellant  had  ever  seen  or  heard  of  WhartdU 
before  the  encounter  on  the  porch.  Xot  a  word  was  spoken 
during  the  struggle,  either  by  Wharton  or  ai)pellant.  Appd- 
iant  testitied  on  his  own  behalf  substantially  to  the  circum- 
stances of  the  homicide,  as  he  liad  related  them  to  the  arresting 
officers.  Wharton  was  luiarmcd,  nothing  but  an  unopened  jKX'k- 
etknife  lieing  found  upon  his  person.  The  wife  of  the  appellant 
was  generally  known  as  "Lizzie  Johnson,''  and  there  was  nu 


BRIDGEWATER  r.  STATE. 


273 


CM  sod 

h  tho 
irton, 

leant 
SIu 

talk- 


evidmco  that  tlio  (Iceeaprd  know  that  sho  was  a  married  woman. 

liojcctiuff,  as  the  jury  did,  as  wholly  incredible,  the  testimony 
of  the  ap])ellant  that  the  deeeastnl,  without  provocation  and 
without  a  word,  struck  the  apixdlnnt  aa  he  stepped  upon  the 
]M>r('li,  the  evidence  fully  justified  the  jury  in  finding  that  the 
killing  was  done  purpfisely  aiid  maliciously.  The  time  and 
c:;ruii!stanccs  of  the  attack;  its  suddenness  and  ferocity;  the 
.viiipon  used;  the  nuinher  and  character  of  the  wotmds,  and 
their  locati<m, — unniistakahly  indicated  a  relentless  purpose  to 
kill,  i'ou|)led  Avith  intense  malice,  which,  in  its  technical  sense, 
is  an  evil  disposition  to  do  injury  for  tho  gratification  of  jeal- 
ousy, auger,  hatred,  or  other  like  passion.  ^lalice  cannot  be 
inferred  from  the  use  o^^  a  deadly  weajwn  alone;  for  such  a 
weapon  nniy,  under  ])r<iper  circumstances,  he  employed  in 
necessiirv  self-defense.  But  where  a  homicide  is  perpetratod  by 
the  i..:<  iitional  use  of  a  deadly  weapon,  in  such  manner  as  is 
likely  to,  and  does,  pi-oduce  death,  the  law  presumes  such  homi- 
cide was  committed  purposely  and  maliciously,  unless  it  was 
done  ill  self-defense,  or  upon  a  sudden  heat  occasioned  by  such 
]irovoeation  as  is  ad((piate  in  laAv  to  reduce  the  killing  to  the 
grade  of  manslaughter.  MrDcniioft  v.  >Stnfc,  81)  Inil.  187; 
Cum.  r.  Wclhstcr,  5  Ciisli.  29.');  Murphy  v.  State,  31  Ind.  511; 
Cicin  r.  State,  Id.  4S();  Boijte  v.  State,  105  Ind.  4«;0,  (5  X.  E. 
L'0;3,  :..".  Am.  Kep.  218)  ;  jtotrrll  v.  Com.,  "".  Grat.  995;  Mitch- 
etl  V.  Com.,  ;?;}  Grat.  s72;  KuMe  v.  Stale,  32  Ind.  220; 
Newport  c.  State,  140  Ind.  299,  .",9  X.  E.  92G;  Com.  v.  Drum, 
58  Pa.  St.  9;  People  r.  Srlwi/rer.  42  X.  Y.  1,  1  Am.  Re]).  480. 

Without  undertaking  to  weieli  the  evidence,  and  disrci»ardiii2- 
all  contradictions  and  explanations,  we  think  it  fully  su])ports 
♦^lie  verdict,  and  it  is  dlHici-lt  to  see  how  the  jury  could  have 
reached  niiy  other  conclusion  more  favorable  to  the  appellant. 

It  is  dhjci'ted,  in  tlie  lu  xt  ])lace,  that  the  Court  erred  in  giv- 
ing to  the  jury  instruction  numbered  29,  which  was  in  these 
words:  "(29)  And  if  you,  and  each  of  you,  are  satisfied, 
IhwoikI  a  reasonable  doubt,  that  the  defendant  did  wiltfuUij  kill 
the  said  Ollister  WhaTton,  but  the  same  was  done  without 
malice,  express  or  implied,  and  without  premeditation,  volun- 
tarilv,  then  vou  mav  find  the  defendant  guiltv  of  nuin- 
slaughter." 

Counsel  for  appellant  say  that  the  use  of  the  word  'Uvill- 
fully"  was  unauthorized  and  improper;  that  it  means  not  only 

Vol.   XIII— 18 


« 


l)' 


I    f' 


11 


274 


AMERICAN  CRIMINAL  REPORTS. 


J 


vohmtarily,  but  with  a  bad  ptirpose,  or  an  evil  intent,  -without 
justifiable  excuse, — citing,  among  other  cases,  Com.  v.  Kiuc- 
land,  20  Pick.  20G,  and  Felton  v.  U.  8.,  9G  U.  S.  099,  24  L. 
Ed.  875. 

Granting  that  the  definition  contended  for  is  the  correct  one, 
the  Wfe  of  tlie  word  "willfully,^'  so  far  from  hoing  injurious  to 
appellant,  rendered  the  instruction  more  favorable  to  him  than 
he  had  any  right  to  ask.  It  said,  in  effect:  If  you  are  satisfied 
beyond  a  reasonable  doubt  that  the  defendant,  even  ivith  an  evil 
intent,  and  without  justi/lahle  excuse,  did  kill  the  said  Ollistcr 
Wharton,  but  the  same  was  done  without  malice,  express  nr 
implied,  and  without  premeditation,  vohmtarily,  then  you  may 
find  the  defendant  gui'ty  of  manslaughter.  The  a]>pellaiit 
could  not  have  been  prejudiced  by  the  use  of  the  word  "will- 
fully," and  whatever  confusion  may  have  been  occasioned  hy 
its  use  was  more  likely  to  operate  in  his  favor  than  in  the 
ojjposite  direction. 

The  appellant  requested  tlie  court  to  give  an  instruction  in 
this  fonn:  "(10)  Voluntary  manslaughter  is  the  unlawful 
killing  of  a  luiman  being,  without  malice,  express  or  implicil, 
voluntarily,  upon  a  sudden  heat,  as  where,  upon  provocatidii, 
tlie  passion  has  been  aroused,  and  the  fatal  act  is  unlawfully 
and  voluntarily  committed,  before  sufficient  time  has  elapsed  to 
allow  thd  passion  to  cool  and  for  rea>^on  to  resume  its  sway." 
The  court  refused  to  give  the  instruction,  and  this  ruling  is 
complained  of  as  error.  The  instruction  tendered  is  bad,  if  for 
no  other  reason,  because  it  fails  to  qualify  the  Avovd  "provoca- 
tion" with  the  term  '^adequate  or  sufficient"  Murphy  v.  Slate, 
31  Ind.  .511;  Henning  v.  Slate,  10(5  Ind.  386  (0  x!  E.  803), 
and  (7  X.  E.  4) ;  Stout  r.  State,  90  Ind.  10. 

Besides,  instructions  numbered  3,  12,  13,  14,  IS,  and  21) 
clearly  and  distinctly  advised  the  jury  upon  every  point  in- 
tended to  1x3  covered  by  the  instnictiou  offered  by  app(^llant. 

Appellant  requested  the  court  to  instruct  the  jury  as  follows: 
"(12)  You  are  the  sole  ami  exclusive  judges  of  the  law  an<l 
of  the  facts.  It  is  the  duty  of  the  court  to  instruct  the  jury  in 
the  law,  but  his  instructions  ai'c  as  advisory  only,  and  you  may 
disregard  them,  and  determine  the  law  for  yourselves."  The 
court  refused  to  give  this  instruction,  but  in  its  stead  instructed 
the  jury  that  they  were  the  exclusive  judges  of  the  law  and  the 
facts. 


BRIDGEWATER  v.  STATE. 


275 


It  has  been  held  by  this  court  tliat  the  jury  in  a  criminal 
ense  are  not,  strictly  speaking,  the  sole  judges  of  the  law.  Anr 
dcrson  v.  State,  104  Ind.  467,  4  X.  E.  03,  and  5  N.  E.  711. 
See,  also,  Zimmerman  v.  State,  4  Ind.  App.  !)H3,  31  X.  E.  550. 
It  is  said  in  Dean  v.  State,  147  Ind.  215,  40  X.  E.  530:  "It  is 
the  duty  of  the  trial  judge  to  instnict  the  jury  as  to  the  law 
of  the  case,  and  not  bv  his  instructions  to  submit  to  them  diifer- 
ent  lc,i;al  propositions,  and  inform  them  that  they  are  to  deter- 
iiiino  which  are  applicable  to  the  case  on  the  trial.  The  jury,  it 
is  true,  under  our  constitiition,  are  the  exclusive  judges  of  the 
facts,  and  have  also  the  right  to  determine  the  law,  but  this  does 
not  give  them  the  riglit  to  disregard  the  law.  Under  their  oatlis, 
tliey  are  boimd  to  determine  the  law  correctly,  Anderson  v. 
State,  104  Ind.  407,  478,  4  X.  E.  03,  and  5  x!^  E.  711 ;  Blaker 
r.  Slate,  130  Ind.  203,  29  X.  E.  1077;  Walker  v.  State,  136 
Ind.  003,  070,  071,  30  X.  E.  350;  Reynolds  v.  State,  147  Ind. 
3,  45  X.  E.  31 ;  Smith  v.  State,  142  Ind.  288,  41  X.  E.  595." 

In  Blaker  v.  State,  130  Ind.  205,  29  X.  E.  1078,  this  court 
said :  "They  [the  jury]  have  no  more  right,  in  determining 
the  law,  to  disregard  and  ignore  the  court's  instnictions,  arbi- 
trarily and  without  cause,  than  to  disregard  and  ignore  the 
evidence,  and  determine  the  facts  arbitrarily  and  without 
cause." 

The  constitutional  provision  is  as  follows:  "In  all  criminal 
eases  Avhatever,  the  jury  shall  have  the  right  to  determine  the 
law  and  the  facts."  Article  1,  §  19. 

Wlien  the  court  is  properly  requested  to  instruct  the  jury 
in  a  criminal  case  that  they  have  the  right  to  detenu ine  the 
law  and  the  facts,  it  is  bound  to  do  so.  But  it  is  not  re(|nired 
to  go  a)iy  further.  It  is  not  required  to  neutralize  the  etl'eet  of 
irs  instructions  by  telling  the  jury  that  they  are  at  liberty  to 
disregard  them,  and  to  decide  the  law  for  tliemselves.  When 
the  Cdurt  informs  the  jury  that  they  have  the  right  to  determine 
the  law  and  the  facts,  it  states  the  only  legal  proposition  neces- 
sary to  be  laid  down  on  that  subject.  Xo  elalwration  of  it  can 
make  it  any  clearer,  nor  can  the  court  be  subjected  to  the 
indignity  of  being  compelled  to  state  that  its  carefully  con- 
sidered views  of  th.e  law  of  the  case  possess  no  weight,  and  may 
1)0  ignorantly  or  contemptuously  set  aside.  The  mere  recjuest 
for  such  an  instruction  savors  of  disrespect  for  the  court;  the 
giving  of  it  tends  to  degrade  the  court,  and  to  bring  it  into  con- 


in 


;fe  i 


276 


AMERICAN  CRIMINAL  REPORTS. 


tempt.    In  our  opinion,  there  was  no  error  in  tlie  refusal  of  tlio 
cuurt  to  give  the  twelfth  instruction. 

In  tliis  esisc,  an  article  of  clotliing  of  the  appellant,  the  knife 
Avith  ■which  the  homicide  was  committed,  and  a  knife  found  in 
the  pocket  of  the  dcH^easeKl,  were  attached  to  the  bill  of  excep- 
tions. Such  things  have  no  place  in  the  bill,  and  should  never 
l>e  brought  here  with  it.  Verbal  descriptions  of  all  items  of 
evidence  of  this  character  are  sufficient,  and  are  the  only  proper 
methods  of  bringing  such  items  to  the  attention  of  this  court. 
Finding  no  ermr  in  the  record,  the  judgment  is  affinned. 


I. 


4 


Note. — Here  are  two  English  cases  as  to  manslaughter. 

REX  VS.  PIERRE  AYES. 
Russell  &  Ryan  1C6.     [1810.] 

After  mutual  blows  between  the  prisoner  and  the  deceased,  the  pris- 
oner knocked  the  deceased  down,  and  after  he  was  upon  the  ground, 
stamped  upon  his  stomach  and  belly  witli  great  force.  Held,  man- 
slaughter only. 

The  prisoner  was  tried  before  Mr.  Baron  Graham,  at  the  Exeter  Lent 
a.-sizes,  in  the  year  1810,  on  an  indictment  charging  him  the  said  Pierre 
Ayes  (who  was  a  French  prisoner)  with  the  murder  of  Jean  Berjeant, 
(a  fellow  prisoner),  In  the  Mill  prison,  at  Plymouth,  on  the  12th  of 
March,  1810,  by  throwing  him  on  the  ground,  and  stamping  on  his 
breast,  belly,  and  loins,  thereby,  etc. 

It  appeared  that  some  French  prisoners  were  gambling  in  an  upper 
room  of  the  prison,  and  one  of  them  whilst  at  play,  feeling  a  man 
take  a  tin  tobacco  box  out  of  his  pocket,  turned  quickly  round,  and 
seeing  the  box  in  the  hand  of  Jean  Berjeant,  the  deceased,  took  it 
from  him,  gave  him  two  slaps  on  the  face,  and  bid  him  get  away.  The 
deceased  went  down  stairs,  but  a  clamor  had  been  raised  against  him, 
and  on  coming  down  he  was  followed  by  several  others;  one  of  theiu 
took  the  cap  off  his  head,  asking  him  how  he  came  to  take  the  tobacco 
box;  on  his  promising  to  do  so  no  more,  the  deceased  got  back  his  cap 
and  went  towards  his  bed.  As  he  passed  by  the  side  of  the  beer  table, 
the  prisoner  arose  from  the  table,  icent  up  to  the  deceased,  and  with 
hoth  his  hands  pushed  against  his  breast  with  great  force,  and  the  de- 
ceased fell  on  his  back  on  the  ground.  The  deceased  arose  and  struck 
the  prisoner  two  or  three  times  with  his  double  fist  in  the  face,  and 
one  blow  on  the  eye.  Then  the  prisoner  being,  as  the  witness  expressel 
it,  very  drunk,  pushed  the  deceased  in  the  same  manner  a  second  tiino 
on  the  ground,  and  gave  him  as  he  lay  on  his  back  tioo  or  thee  stamps 
with  great  force  tvith  his  right  foot  on  the  stomach  and  belly;  the  de- 
ceased cried  out,  "Helas!  Helas!  let  me  alone."  The  witness  then  told 
the  prisoner  to  have  pity  on  him,  that  if  he  was  a  thief,  he  might  seek 
him  out  the  next  morning,  and  whip  him,  to  which  the  prisoner  replied, 


BRIDGEWATER  v.  STATE. 


277 


tho 


nifo 


it  was  none  of  his  business,  and  he  ought  not  to  take  the  deceased's 
part.  The  deceased  then  arose  on  his  seat,  and  whilst  sitting,  the 
jjrisoner  gave  him  a  kick  on  his  face,  a  strong  kick;  *the  blood  came 
cut  of  his  mouth  and  nose,  and  he  fell  backward.  The  prisoner  then 
went  away. 

The  deceased  lay  some  time,  it  might  be  two  or  thiee  minutes, 
before  he  arose;  he  made  no  complaints;  a  great  quantity  of  blood 
came  from  his  mouth  and  nose,  he  then  got  up  and  went  away,  stoop- 
ing very  much;  as  the  witnesses  described  it,  doubled  in  two.  None 
of  the  prisoners  gave  him  succor,  he  was  treated  as  a  thief. 

The  deceased  was  a  small  man,  the  prisoner  stout,  but,  as  all  the 
witnesses  agreed,  much  in  liquor.  The  deceased  after  this  went  to 
his  bed,  and  was  not  seen  until  the  next  morning,  when  be  was  taken 
to  the  hospital  in  a  dying  condition.  H*>  ""id,  "I  am  dying;  they  have 
killed  me."  The  witness  asked  him  if  he  knew  the  man;  he  said 
there  were  two  or  three  that  came  on  account  of  his  stealing  the  to- 
bacco box  and  jumped  upon  him;  he  said  he  did  not  know  any  of 
ihem. 

A  witness  employed  to  make  inquiries  sent  for  the  prisoner  to  a  pri- 
vate room,  and  said  to  him,  "How  is  it  that  you  have  done  this?"  The 
prisoner  said,  "I  was  very  drunk,  very  much  in  liquor,  and  did  not 
know  what  I  was  about."  The  witness  told  him  that  it  was  a  shame, 
that  the  man  was  dead.  He  said  he  was  very  sorry  for  It,  that  he  was 
drunk. 

The  deceased  died  early  on  the  16th  of  March.  The  hospital  sur- 
geon opened  the  body.  He  described  the  whole  of  the  intestines  as  in 
a  state  of  excessive  inflammation,  the  effects  of  the  bruises,  and  he 
had  no  doubt  that  the  stamps,  such  as  he  had  heard  described,  and  of 
which  he  saw  the  effects  on  the  body  before  the  deceased  died,  were 
the  cause  of  his  death. 

The  learned  judge  observed  to  the  jury,  that  there  was  little  doubt 
but  that  the  evidence  proved  that  the  prisoner  had  caused  the  death 
of  the  deceased.  If  what  he  did  was  the  effect  of  a  sudden  transport  of 
passion  beyoni  the  control,  of  reason,  he  was  guilty  of  manslaughter; 
if  done  with  malice,  he  wcs  guilty  of  murder.  That  this  was  not  done 
of  malice  in  its  ordinary  sense,  or  from  a  premeditated  design  of  kill- 
ing the  deceased,  or  endangering  his  life;  but  malice  or  great  enmity 
far  beyond  the  provocation  might  still  be  Implied  from  the  circum- 
stances of  the  case.  The  prisoner  was  the  aggressor;  and  though  he 
was  assaulted  and  beaten  by  the  deceased,  he  had  provoked  the  assault; 
but  although  he  was  the  aggressor,  if  his  resentment  had  been  con- 
fined to  the  second  blow,  by  which  the  deceased  was  thrown  to  the 
ground  and  the  death  of  the  deceased  had  been  in  conseque:ice,  there 
would  have  been  fair  room  to  say  it  was  done  in  heat  of  blood.  But 
when  the  deceased  was  thrown  upon  the  ground,  incapable  of  further 
resistance,  it  was  difficult  to  ascribe  to  the  mere  effect  of  sudden  resent- 
ment the  stamping  upon  his  body  in  the  manner  described.  With 
regard  to  the  prisoner's  defence,  he  told  the  Jury  that  the  law  did  not 


f'h 


1^1 1 


t     I 


H 


278 


AMERICAN  CRIMINAL  REPORTS. 


allow  of  the  plea  of  drunkenness  as  an  extenuation  of  the  offene 
charged. 

The  jury,  composed  one-half  of  foreigners,  found  the  prisoner  gullly 
of  murder,  and  the  learned  Judge  pronounced  sentence  upon  him; 
but  thinking  that  the  case  required  further  consideration,  particularly 
as  there  appeared  to  be  no  interval  of  time  between  the  second  blow 
which  threw  the  deceased  to  the  ground  and  the  stamping  on  his 
body,  he  respited  the  sentence  to  take  the  opinion  of  the  judges  whether 
upon  the  evidence  this  case  was  a  case  of  murder,  or  manslaughter 
only.  , 

In  Easter  term,  29th  of  May,  1810,  all  the  judges  assembled,  ami 
were  of  opinion  that  the  conviction  was  wrong,  being  only  man- 
slaughter. 

RAMPTON'S  CASE. 

Kelyug  41. 

Old  Bailey.  1G64. 

At  the  same  Sessions  James  Rampton  was  indicted  for  the  Murder 
of  his  Wife;  and  upon  the  Evidence  the  Case  was,  that  he  being  a 
Hackney  Coachman,  found  a  Soldier's  Pistol  in  the  Street,  and  when 
he  came  home  he  shewed  it  to  his  Master,  and  they  took  the  Gun- 
stick  and  put  it  into  the  Pistol,  and  it  went  down  into  the  Mussel  of 
the  Pistol,  by  which  they  thought  it  was  not  charged,  and  his  Wife 
standing  before  him,  he  pulled  up  the  Cock  and  the  Pistol  went  off, 
and  being  charged  with  two  Bullets,  wounded  her  in  the  Belly,  and 
killed  her,  upon  which  he  cried  out.  Oh  I  have  killed  my  dear  Wife! 
and  called  in  Neighbours,  it  was  holden  by  us  all,  that  this  was  Man- 
slaughter, and  not  only  Misadventure. 


l!n»rici.>!  ; 


State  v.  Stuong. 

153  Mo.  548—55  S.  W.  Rep.  78. 

Decided  January  23,  1900. 

'maltreatment  of  ivoiind — Instructions  as  to  self  defense 
jiaughter  in  the  third  degree — Grades  in  Homicide. 


1.  Where,  on  a  trial  for  murder,  accused  has  not  attempted  to  show 
that  the  sole  cause  of  deceased's  death  was  the  maltreatment  of  the 
wound,  and  not  the  wound  itself,  evidence  as  to  whether  a  certain 
treatment  was  proper  is  inadmissible. 

S.  An  instruction  as  to  manslaugnter  in  the  third  degree  cannot  bo 


For  cases  in  previous  volumes  on  any  subject,  see  Tabic  of  Topics  in 
this  volume. 


mm 


STATE  V.  STRONG. 


279 


en:e 

111  It. V 

lini; 
larly 
blow 
his 
'tlier 
:hter 


given  In  conjunction  with  ar  Instruction  relative  to  self-defense, 
since  the  latter  Is  an  affirmative  defense,  and  embraces  every  self- 
protective  intention  known  to  the  law,  though  It  extend  to  the 
taking  of  life. 

;;.  An  accused's  testimony  that  he  did  not  intend  to  kill  deceased, 
though  he  stabbed  him  several  times,  cannot  be  received  or  made 
the  basis  of  an  instruction. 

4.  An  instruction  on  a  trial  for  murder,  using  the  words,  "in  heat  of 
passion,"  without  defining  them,  Is  erroneous, 

J  Evlde.  ce  that  accused.  Immediately  after  inflicting  the  mortal 
wound,  went  for  a  physician,  Is  Inadmissible,  as  being  a  self-serv- 
ing act. 

Sui)rome  Court  of  Missouri,  Division  No.  2. 

Apju'til  from  Circuit  Court,  Dunklin  County;  Hon.  J.  L. 
Fort,  Judge. 

John  Stronir,  convicted  of  manslaughter  in  the  third  degree, 
appeals.     Utverseil. 

J.  P.  Tribblc,  for  the  appellant. 

Edward  C.  Crow,  Attorney  General,  for  the  State. 

SiiKHWooi),  J.  Indictment  for  murder  in  the  second  degree, 
trial,  and  conviction  of  manslaughter  in  tho  third  degree,  and 
defendant  appeals. 

The  difficulty  which  resulted  in  the  tragedy  which  forms  the 
])asis  of  this  pmsecution  arose  between  defendant  and  Gastine 
on  July  y,  181)7,  in  relation  to  a  (puirrol  Ix'tween  their  boys. 
(Jastine  died  on  the  17th  of  the  stune  month,  and  the.  State 
asserts  that  his  death  resulted  from  avouiuIs  inHicUd  on  him 
by  defendant  with  a  ptx'kot  knife.  The  defendant's  account  of 
tho  matter,  jis  abstracted  by  the  State,  is  the  following:  ''I  am 
the  defendant.  On  July  3,  1897,  a  number  of  the  neighbors 
had  come  over  to  my  house  to  have  dinner,  and  after  wi'  had 
dinner  I  lay  down,  and  went  to  sleep,  and  along  in  the  afternoon 
the  boys  came  in,  and  was  talking  about  a  fight  among  tho 
children.  Directly  there  was  a  row  again  among  the  women, 
and  I  asked  what  was  the  matter,  and  Mr.  Spaulding's  boy  said 
that  Mr.  Gastine's  boy  had  whii)ped  niy  boy,  and  that  Mr. 
Gastine  would  not  allow  him  to  defend  himself.  *Well,'  I  says, 
'I  just  guess  that  is  a  mistake.'  I  says,  'Eph,  I  guess  you 
raist«l  a  racket,  and  if  you  hav(>  I  will  punish  you.'  I  went  in 
the  house,  aiid  put  on  a  pair  of  shoes,  and  proceeded  to  the 


rt 


*•'' 


hi 


?i> 


If: 


i 


■i 


280 


AMERICAN  CRIMINAL  REPORTS. 


piuiip,  whoro  Gastine  was.  I  asked,  'What  is  the  matter  witli 
tli(;  boys  V  He  said,  'Xothiiig  that  I  know.'  I  saitl :  *.Mr. 
Si)aulding's  boy  had  come  and  complaimd,  and  if  my  l>oy  h;i.s 
been  imposing  on  your  boy  I  want  to  whip  liim.  lie  sliall  ndt 
im})ose  u})on  my  neighbors'  chihh'en.'  Ga,stino  said  tlierc  was 
notl!,ing  wrong  witJi  the  boys.  I  said:  'I  don't  know;  tliere 
must  bo  something  some  way.  Mr.  SpauUling's  big  boy  would 
not  Imve  told  it.'  Gastine  said  there  w;ts  nothing  wrong  with 
the  boys,  and  turned  loose  of  the  j»ump  handle,  and  conic 
towards  me,  and  as  ho  started  towards  me  ho  rolled  uj)  his 
shirt  sleeves,  and  said,  *J)anni  y(Ui,  I  will  just  whip  you.'  As  he 
came  I  ste2)iied  back  over  o\w  rail  of  the  wooden  track,  and  he 
ke])t  rushing  onto  me,  and  I  picked  \\\)  a  stick, — a  lind), — one 
end  of  which  I  pulled  out  of  the  mud.  He  gave  a  big  rush  at 
me,  and  I  hit  him  over  the  loft  shoulder,  and  what  W(  iit  with 
the  stick  I  am  not  able  to  say.  He  got  that  stick  or  some  other 
stick  and  hit  nie  two  licks,  one  on  the  head  and  one  on  'he 
neck,  and  he  hit  me  again  on  the  arm,  and  then  he  clinched  me, 
and  took  hold  of  my  throat  with  his  left  hand,  and  his  right 
hand  hold  of  my  neck,  and  he  said,  'I  will  break  your  damned 
neck;'  and  by  this  time  I  was  off  of  the  track,  working  in 
towards  the  fence,  and  I  thought  I  was  in  a  critical  cunditiiin, 
anil  he  was  worrying  me.'  I  t(X)k  my  knife  from  my  l.ft  hip 
pocket  with  my  left  hfind,  and  opened  it  with  my  ri";l;r  hand, 
and  cut  him.  As  soon  as  I  could  get  loose  from  him,  I  tore 
loo.-e,  and  run  away.  I  went  behind  a  stinnp.  He  jerked  a 
knife  out  of  his  pocket  with  his  right  hand,  and  started  tnwards 
nie.  He  was  trying  to  open  it.  1  rail,  and  got  iM^hind  another 
stump,  and  he  was  yet  coming  towards  me,  and  I  told  him  to 
iro  awav,  as  I  did  not  want  to  bother  him.  1  did  not  think  of 
having  any  ditKculty  with  him  when  1  went  out  there.  I  was 
not  an  able-bodied  man  like  he  Avas,  and  when  I  struck  him  I 
aimed  to  check  him  until  I  could  get  away.  I  think  the  club 
you  show  me  is  the  one  I  us«.d  on  him.  When  I  cut  him  he 
was  overpowering  me,  and  it  seemed  no  one  would  come  and 
t  ;ke  him  off,  and  I  simi)ly  cut  him  to  get  loose  from  him.  1 
did  not  intend  to  kill  him.  Mr.  Poo  had  told  mo  before  that 
recently  Gastine  did  not  like  me,  and  was  going  to  give  me 
trouble.  He  said  it  was  on  account  of  the  cattle.  When  we 
had  trouble  about  the  cattlo,  I  Avent  to  Gastine,  and  told  him  he 
wa;3  a  good  driver,  LiU  we  had  rules,  and  he  must  live  up  t.) 


STATE  r.  STRONG. 


281 


tlicm.  ITp  said,  'All  right.'  I  had  no  hard  fcclinf^  towards  the 
man  at  all.  The  cutting  happened  hetweeu  o  and  4  o'clock  in 
the  afternoon.  I  g(vt  the  clnb  after  I  got  to  talking  to  Gastine. 
1  thougiit  he  would  hurt  me  seriously,  if  I  did  not  cut  him. 
lie  had  let  loose  of  the  pump,  and  was  advancing  towards  me, 
when  I  hit  him.  I  am  not  able  to  do  ])hysical  work.  I  was 
superintendent.  I  have  stone  in  the  hhuhler.  Gastine  did  lots 
ftf  work.  11(5  had  ordinary  strength,  lie  loaded,  unloaded, 
drove,  sawed,  and  chopped  logs.  I  was  working  for  the  Las- 
v/ell  Milling  Company  at  that  time.  I  had  hecn  in  their 
employ  four  or  five  yeai's  then.  I  work  for  them  now.  The 
knife  I  had  was  not  large;    it  was  an  average  sized  knife." 

in  mnuy  particuhxrs  defendant's  testimony  was  corroborated 
by  his  witnesses,  as  well  as  by  some  of  those  on  the  part  of  the 
State. 

The  evidence  on  the  part  of  the  State,  while  it  discloses  that 
the  knile  })enetrated  the  pU'ural  cavity,  yet  did  not  show  that 
the  lung  was  cut,  nor  that  the  wounds  were  fatal.  Dr.  Apple- 
gate,  although  he  at  tii-st  answered  that  he  considered  the  wounds 
fatal,  yot  on  cross-examination  admitted  that  he  was  just  -speak- 
ing of  the  time  ho  saw  Gastine,  four  days  after  the  stabbing; 
when  the  wounds,  having  received  no  medical  attention  what- 
ever, were  greatly  inlhuned. 

Dr.  Harrison,  the  coroner,  who  held  a  post  morion  on  the 
l>ody,  tcstiticd  that  Gastine  died  of  blood  poisoning,  and  that  the 
left  hiiig  had  suppurated  almost  entirely  away,  and  he  could 
not  ""tell  what  injury  was  done  to  the  lung;  it  might  have 
be<'n  cut  all  to  pieces,  and  might  not  have  been  touched  to 
amount  to  anything." 

The  court  gave,  as  asked  by  the  State,  instructions  on  murder 
in  the  second  dt^grce,  manslaughter  in  tJie  third  degree,  in  the 
fourth  (k'gree,  self-defense,  reasonable  doubt,  presum))tion  of 
innocence,  and  go<Ml  character.  It  is  only  necessary  to  (juote  a 
portion  of  the  instructions  given,  as  follows: 

"(2)  Manslaughter  in  the  third  degree,  for  the  purposes  of 
this  trial,  is  the  killing  of  a  hunuin  being  in  a  heal  of  passion, 
without  a  design  to  effect  death,  by  a  dangerous  weapon,  in  any 
case  except  such  Avherein  the  killing  of  said  Imnian  iK'ing  is 
justitiablo  or  excusabk",  as  exi)lainod  in  the  subsequent  instruc- 
tions. 

u-x-     w     «.     ^3^  Q^jj^,  court  instructs  the  jury  that  if  they  be- 


I  V 


ij 


282 


AMERICAN  CRIMINAL  REPORTS. 


Si 


I 


licvc  and  fiiul  from  the  evidence  in  this  canse  tliat  at  the  county 
of  Dunklin  and  State  of  ^Missouri,  on  July  3,  185)7,  defendiint, 
John  Strong,  who  is  indicated  herein  as  ilohn  Strawn,  did  will- 
fully strike  one  G.  W.  Gastine  upon  the  hody  with  a  kiiit'c  luiv- 
ini?  a  Made  two  and  one-half  inches  in  U  ngth,  and  that  su;lj 
knife  was  a  dangerous  w(  apon,  and  that  said  blow  was  struck  in 
the  heat  of  passion,  without  a  design  to  eifect  death,  and  the 
said  Gastine  died  from  the  eifect  of  said  wouiul  on  July  20, 
l.S!)7,  in  said  Dunklin  county,  then  you  will  tind  the  detVndant 
guilt^'  of  manslaughter  in  the  third  degree,  notwithstanding  vdu 
may  also  iind  and  iK'lieve  from  tl'.o  testimony  that  unskillid 
medical  treatment  aggi-avated  such  wound,  and  tliat  deceased 
might  have  recovered  if  greater  care  and  skill  had  Ixen  em- 
ployed in  treating  him." 

1.  The  CDurt  permitted  T)r.  Applegatc  to  be  asked  the  (jues- 
tiou  wh<  ther  the  proper  treatment  of  Gastine  Avould  not  have 
been  to  have  ins(M'tcd  a  drainage  tube  in  the  lung  cavity,  and 
have  kc  pt  a  constant  drainage  from  that  j)art  of  the  body. 
This  he  answered  in  the  affirmative.  Subs((piently,  J)r.  Har- 
rison, the  con  ner,  was  asked  a  similar  question,  which,  on  objec- 
tion by  the  State,  ho  was  not  permitted  to  answer.  The  same 
idea  which  refused  permission  to  the  (piestion  tinds  enunciation 
in  the  latter  ])iirt  of  instruction  3,  already  quoted. 

On  the  l()i)ic  thus  end)raccd  in  the  evidence  denied  and  the 
instruction  given  a  learned  text  writer  says:  "If  death  ensues 
from  a  wound  given  in  malice,  but  not  in  its  nature  mortal,  but 
which  being  neglected  or  mismanaged  the  party  died,  this  will 
not  excuse  the  i)risoner  who  gave  it,  but  he  will  \)o  held  guilty 
of  the  niurtl(>r,  unless  he  can  make  it  clearly  and  certainly 
ai)pear  that  the  maltreatment  of  the  wimnd,  or  the  medicine 
administered  to  the  patient,  or  his  own  misconduct,  and  not 
the  wound  itself,  Avas  the  sole  cause  of  his  death ;  for,  if  tl^e 
wound  had  ncit  been  given,  the  party  had  not  died."  3  Green  I. 
Ev.  (14th  Ed.)  §  139.  Sec,  also,  9  Am.  &  Eng.  Enc.  Law  (1st 
Ed.)  .534,  .53,5  et  seq. 

In  this  ease  there  was  no  attempt  made  nor  offer  to  show 
that  the  sole  cause  of  Gastine's  death  was  one  of  the  things  men- 
tioued  by  Greonleaf  as  sufficient  to  accomplish  the  exoneration 
of  one  charged  with  homicide.  This  being  the  ca?e,  there  was 
no  error  in  rejecting  the  evidence  or  in  giving  the  instruction. 
To  the  Game  effect,  see  State  v.  Landgraf,  95  Mo.  97,  8  S.  W. 
237. 


STATE  V.  STRONG. 


288 


2.  In  State  v.  Rapp.  142  Mo.  443,  44  S.  W.  270,  wo  havo 
said,  quoting  from  a  fornicr  opinion,  that  "solt'-defcnao  is  an 
aftirniativo,  positivo,  ir.U  utional  act."  If  tlii.s  be  tnio,  then  an 
instructittn  in  relation  to  nianslangliter  in  the  third  degrees 
shouM  not  1)0  given  in  conjunction  with  an  instruction  rehitivo 
to  self-(l(fciiso,  since  the  hitter  embraces  every  aelf-jjrotective 
intention  known  to  the  hiw,  even  though  it  end)race  the  taking 
of  lit(.  And  although  (h^t'enihint  swears  he  did  not  intend  to 
kill  (jlastine,  though  he  stabbed  him  once  in  the  arm  and  twico 
in  the  side,  yet  his  testimony  on  this  point  is  not  to  be  received 
or  maile  the  basis  of  an  instruction.  State  v.  Nelson,  1 18  Mo., 
loc.  cit.  12()  et  seq.,  23  S.  W.  lOKJ),  and  cases  cited.  This  view 
also  accords  with  what  is  said  in  regard  to  a  similar  instruction 
in  regard  to  manslaughter  in  the  third  degree.  State  v.  Pettit, 
11!)  Mo.,  loc.  cit.  41<;,  24  S.  W.  1015,  which  overrules  Stale  v. 
Taliiintjr.  107  Mo.  643,  17  S.  W.  91)0.  Tiie  instructions 
should  there  t'orc^  have  been  confined,  so  far  as  concerns  the  grade 
of  the  (ttfense,  to  grades  other  than  that  of  manslaughter  in  the 
third  degree. 

3.  There  was  error  in  giving  instruction  4,  at  tlie  State's 
instance,  because  no  definition  was  given  of  the  words,  "in  a 
heat  of  passion."  Slate  v.  Andrew,  7(5  ^lo.  1^)1  ;  State  v. 
Forsijthc,  8!)  Mo.  007,  1  S.  W.  834;  State  v.  Hicham,  95  Mo., 
loc.  cit.  330,  8  S.  W.  256. 

4.  Xo  error  occurred  in  the  refusal  to  admit  testimony  that 
defendant,  innnediatc  ly  after  the  stabbing,  went  after  a  physi- 
cian for  (lastine.  Such  self-serving  acts  are  inadmissible. 
State  V.  Taylor,  134  Mo.  154,  35  S.  W.  92,  and  cases  cited. 

For  the  errors  set  forth,  we  reverse  the  judgment,  and  remand 
the  cause.     All  concur. 

NoTi:  (By  J.  F.  G.) — That  unskillful  treatment  of  a  wound,  doet 
not  constitute  a  defense,  was  substantially  sustained  in  Cunninfiham  v. 
People,  which  appears  later  in  this  volume.  In  that  case  it  was  claimed 
by  the  defense,  that  death  was  the  result  of  a  weak  or  debilitated  con- 
dition of  deceased,  which  was  not  sustained. 

Another  interesting  case  is  given  by  Kelyng;  whose  report  of  It, 
preserving  the  original  capitalization,  we  give  as  follows: 

REW'S   CASE. 

Kelyng  2G. 

Newgate  Sessions,  14  Charles  2. 

At  the  same  Sessions,  Edward  Reic  was  indicted  for  killing  Nathaniel 

Rcw  his  Brother,  and  upon  the  Evidence,  it  was  resolved,  that  if  one 


*'■  ■  i  lit 


,'ii 


m 


'^Hi 


m:, 


2S4 


AMERICAN  CRIMINAL  REPORTS. 


gives  Wounds  to  another,  who  neglects  the  Cure  of  them,  or  Is  dls- 
oidorly,  and  doth  not  keep  that  Rule  which  a  Person  wounded  should 
do;  yot  If  he  dlo  It  Is  Murder  or  Manslaughter,  according  as  the  Ciiho 
is  In  the  Person  who  gave  the  Wounds,  because  If  the  Wounds  had 
not  been,  the  Man  had  not  died;  and  therefore  neglect  or  disorder  In 
the  Person  who  received  the  Wouads,  shall  not  oxcuue  tlie  Person  who 
gave  tbem. 


OwKNs  V.  State. 

118  Ga.  75n— 45  S.  E.  Rei).  598. 

Decided  October  24,  1903. 

Homicide:     Hearsay  evidence. 

1.  On  the  trial  of  one  charged  with  murdering  his  father,  the  killing 
being  ndraitted,  and  the  plea  of  self-defense  relied  on,  whero  the 
accused  in  his  statement  asserted  that  his  mother  had  told  him 
that  the  deceased  had  been  abusive  to  her,  and  threatened  her 
life,  evidence  that  the  mother  had  herself  threatened  to  have 
the  deceased  killed,  not  'n  his  presence,  was  not  admissible  to 
rebut  the  assertion  referred  to,  and,  where  such  evidence  was 
necessarily  harmful  to  the  accui^od,  its  admission  will  work  a 
reversal  of  the  judgment  overruling  the  motion  for  a  new  trial. 
(Syllabus  by  the  Court.) 

Error  to  Superior  Court,  Stewart  County ;  Z.  A.  Littlejolin, 
Judge. 

.\Iiltou  Owens,  convicted  of  murflev,  l^rinj^.s  error.    Reversed. 

G.  Y.  Ilarrcll,  J.  B.  Hudson  and  B.  F.  IlarrcU,  for  plaintiff 
in  error. 

F.  A.  Hooper,  Solicitor  General,  and  John  C.  Hart,  Attorney 
General,  for  the  State. 

Candlkr,  J.  With  one  exception  we  find  no  error  in  any  of 
the  rulings  complained  of  in  the  motion  f(»r  a  new  trial,  but 
that  ex('e])tion,  in  our  ojjinion,  requires  that  the  ca.se  he  sent 
hack  for  another  hearing.  The  accused,  with  other  members  of 
his  fiimllv,  was  indicted  for  the  murder  of  his  father,  lie 
admitted  the  killing,  but  claimed  that  it  was  done  in  selt- 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


OWENS  V.  STATE. 


285 


lis- 

|.so 

1(1 

|iu 


(Icfciise,  nnd  dpnicil  that  any  one  other  than  himself  pnrticli)ntr(l 
in  the  hoiiiicifh'.  It  was  shown  that  scvonil  porsouH  were  pres- 
ent when  thr'  (h'oeasod  \\'u»  killed,  and  there  was  eircunistnntial 
cvidi'nee  wiiieh  wouhl  have  wnrr'.intecl  the  jury  in  findiii<r  that 
nutro  than  one  participated  in  tiie  erinie.  There  was,  how- 
ever, no  evi(h'iK'e  eonnectinj?  the  aeeused  with  any  (•ous])irMey 
to  kill.  In  his  statement  tlu'  accused  declared,  anion;;  other 
things,  that  the  d(><'ease(l  had  l)eon  imposing  upon  his  (the  ac- 
cused's) mother  ever  since  he  could  recollect,  and  that  she  had 
complained  of  the  ahuse  of  the  d<cease<l,  and  of  his  threats'  to 
kill  her.  On  the  other  hand,  evidence  was  admitted  for  the 
Stat<'  to  the  effect  that,  prior  to  the  killing,  the  wife  of  the 
deceased,  who,  as  will  have  heen  seen,  was  the  mother  of  the 
accjised,  had  declared  in  the  presence  of  the  deceased  that  he 
ought  to  have  his  throat  cut;  that  the  deceased  had  said  to  the 
witness  ihat  si.e  (his  wife)  was  going  to  have  him  kill(Ml,  and 
that  she  replied,  "I  did  say  so,"  and  "It  ought  to  he  done." 
The  accused  was  not  shown  to  have  been  ])resent  when  this  con- 
versation took  place.  In  regard  to  this  evidence  the  court 
charged:  **That  testimony  was  oifered  by  the  State  *  *  * 
for  the  purpose  of  replying  to  the  statei-ient  of  the  defendant 
in  regard  O  certain  allege<l  statements  hy  the  wife  as  to  a  cer- 
tain alleged  difficulty  l)etween  her  and  her  husband,  *  "'  * 
and  not  as  threats  to  b<'  weighed  against  the  defendant  in  this 
case,  and  not  to  be  so  weighed  by  the  jury  in  passing  upon 
his  case." 

We  cannot  see  that  this  evidence  was  admissible  for  any 
pur|)i>se  against  the  defendant  on  trial.  On  the  trial  of  the 
mother,  who  is  jointly  indicted  with  him,  it  is  clearly  admis- 
sible. Its  tendency  could  not  fail  to  l)o  prejudicial  to  the 
accused.  Evidence  that  the  wife  had  used  violent  and  threaten- 
ing language  to  lier  husband  does  not  rebut  the  assertion  that  the 
husband,  in  his  turn,  had  been  brutal  and  abusive  to  her,  and 
had  threatened  her  life.  This  is  particularly  so  in  the  case 
under  consideration,  because  the  "tate  of  domestic  warfare  in 
which  this  family  seems  to  have  lived  renders  the  two  facts 
entirely  consistent.  Furthermore,  the  accused,  in  his  statement, 
did  not  say  of  his  own  knowledge  that  the  deceased-  had  ever 
thres^tened  his  wife,  but  merely  that  she  had  told  him  of  such 
threats.  Certainly,  evidence  that  she  had  threatened  the  de- 
ceased is  not  admissible  to  rebut  the  statement  that  the  wife 


^K 


.\H 


^P^^^^^^^^BBB 


286 


AMERICAN  CRIMINAL  REPORTS. 


had,  in  a  conversation  with  the  accused,  asserted  the  cxistonco 
of  a  different  state  of  facts.  As  has  been  seen,  there  was  no 
evidence  of  a  conspiracy  between  the  accused  and  his  motlier, 
and  the  trial  court  seems  to  have  recognized  that  the  threats  of 
the  mother  would  not  be  attributable  to  the  accused  as  a  co- 
conspirator. The  defense  of  the  accused  was  that  ho  took  his 
fatlier's  life  wliile  the  latter  was  endeavoring  to  kill  him.  Tlio 
evidence  improperly  admitted  would,  if  believed  by  tlie  jury, 
tend  to  discredit  this  defense,  and  lead  +hpm  to  believe  that  the 
accused  was  an  assassin,  procured  by  his  mother  to  do  a  das- 
tardly work  of  butchery.  The  evidence  was  therefore  neces- 
sarily harmful  to  him,  and  its  admission  must  work  a  reversal 
of  the  judgment  overruling  the  motion  for  a  new  trial. 
Judgment  reversed.     All  the  Justices  concur. 


Homicide: 


PuLPUs  v.  State. 

82  Miss.  548— -34  So.  Rep.  2. 

Decided  April  6,  1903. 

Self  defense — Instructions — Hearsay  evidence — Absence 
of  co-defendant. 


1.  It  was  error  to  admit  evidence,  to  the  effect  that  a  third  person  had 

stated  in  the  absence  of  defendant,  that  deceased  would  not  be 
reported  for  a  m-t  assault  on  defendant;  but  that  they  were  "going 
to  get  hlni." 

2.  There  being  no  evidence  to  show  that  the  defendant  was  hunting 

for  deceased  for  the  purpose  of  killing  him,  it  was  error  to  Instruct 
the  jury,  that  if  the  jury  from  the  evidence  believed  that  defendant, 
armed  for  that  purpose,  was  searching  for  deceased,  and  did  pro- 
voke the  difficulty,  etc.,  the  killing  would  be  murder,  even  though 
the  killing  was  in  self-defense. 

3.  Arming  and  searching  for  the  deceased  and  provoking  trouble  with 

him,  would  not  deprive  the  defendant  of  the  right  of  self-defense, 
.  if  he  had  abandoned  the  design,  or  If  the  killing  was  not  through 
the  original  intention  to  kill. 

4.  It  was  error  to  show  that  a  co-defendant,  who  wan  on  bail  and  who 

was  not  on  trial,  was  absent  from  the  State  at  the  time  of  the 
trial. 


For  cases  In  previous  volumes  on  any  subject,  see  Tabic  of  Topics  in 
this  volume. 


PULPUS  V.  STATE. 


287 


Appeal  from  Circuit  Court,  Chickasaw  County ;  Hon.  E.  O. 
iSykes,  Judge. 

Austin  Pulpus,  convicted  of  murder,  appeals.     Reversed. 

T.  J.  Buchanan  and  Gilleylan  £  Leftwich,  for  the  appellant. 

William  Williams,  Attorney  General,  for  the  State. 

Caliioox,  J.  The  defendant  and  Alex  Pulpus  and  Arthur 
Orr  were  jointly  indicted  for  the  murder  of  George  Anderson. 
At  the  next  term,  Isaiah  Gillespie  Avas  separately  indicted  for 
this  same  offense.  We  have  only  to  do  with  the  case  of  Austin 
Pulpus,  who  was  separately  tried.  This  defendant  and  George 
Andc  rson,  on  the  day  preceding  the  homicide,  were  engaged  as 
laborers  in  ditching,  when  some  difKculty  occunvd  between 
them,  and  Anderson  struck  him  on  the  head  with  a  spade, 
inflicting  a  bad  scalp  wound.  After  the  blow,  Anderson  threat- 
ened to  kill  Austin  Pulpus.  Only  theses  two  were  engaged  in 
this  trouble.  Austin  Pulpus  went  to  a  doctor  and  had  his  head 
shaved  and  wound  sewed  up,  and  there  is  no  evidence  to  show 
a  con.<piracy  between  Austin  Pulpus,  Alex  Pulpus,  Arthur  Orr, 
Isaiah  Gillespie,  Jesse  Wilson,  and  Pee  Wilson  to  perpetrate  the 
homicide,  but  the  evidence  of  conspiracy,  if  there  be  any  such, 
is  exceedingly  unsatisfactory.  On  the  night  of  the  day  when 
the  blow  with  the  spade  was  inflicted  on  the  defendant,  he 
armed  himself  with  his  father's  pistol,  as  he  says,  fur  the  pur- 
pose of  being  in  condition  to  defend  himself  if  Anderson  under- 
took to  carrv  out  his  threat. 

A!l  (if  the  persons  mentioned,  including  defendant,  were  at 
Joe  Kandle's  house  on  the  next  morning,  which  was  the  day 
on  which  the  homicide  was  conunitted.  The  most  of  them  had 
rabbit  sticks,  and  say  they  hunted  rabbits  as  they  came  through 
tUe  fields.  George  Anderson  was  at  work  there,  and  the  defense 
showed  by  testimony  that  they  saw  him  and  spoke  to  him.  All 
these  parties  ditched  for  Joe  Kandle  on  the  afternoon  when  the 
first  uilllculty  occurreil,  and  i  is  said,  on  the  part  of  the  defense, 
that  they  wanted  Joe  Handle  to  go  down  to  the  ditch  to -see 
about  measuring  up  the  work,  and  so  Handle  and  Isaiah  Gil- 
lespie went  on  the  road,  and  the  others  through  the  fields.  The 
measuring  was  done  at  the  ditch,  and  Handle  was  the  first  to 
leave  the  ditch,  going  home.  Soon  after,  Austin  Pulpus,  on 
account  of  his  head  paining  him,  started  home,  and  with  him 


I' 


'V 


!', 


!l 


288 


AMERICAN  CRIMINAL  REPORTS. 


•went  A!cx  Pulpug,  Arthur  Orr,  and  Fee  Wilson.  All  started 
home  ])y  the  road  which  went  by  Randle's  house,  but-  Wilson 
stopped,  before  the  point  where  the  road  passed  Randle's  house, 
at  anotler  house  to  get  a  driidc  of  water.  Orr  and  Alex  Pulpus, 
goin^  in  advance  of  Austin,  had  passed  George  Anderson  when 
Austin  came  up. 

A  witness  was  permitted  to  state,  over  objection,  that,  in 
answer  to  his  question  to  Fee  Wilson  Avhether  they  were  going 
to  report  Anderson  for  the  blow  with  the  spade,  he  said,  "Xo," 
they  were  "going  to  get  him."  This  was  in  the  absence  of 
defendant  or  any  of  the  party,  and  this  was  error. 

There  was  nothing  to  sh<nv  that  the  presence  of  the  party 
was  other  than  accidental.  On  the  appearance  at  Joe  Randle's 
house,  when  the  killing  occurred,  the  State  offere<l  evidence, 
somewhat  conflicting,  to  the  effect  that  Austin  went  up  to  Ander- 
son and  asked  him  if  he  was  done  with  the  row,  to  which 
Anderson  answered,  "Yes,"  and  that  Austin  tl'.en  threw  a  club 
stick  at  him  twice,  and  that  then  Anderson  threw  a  frow  at 
Austin,  when  Austin  shot  him  twice,  first  in  the  knee,  and  then 
in  tlie  back.  Another  witness  for  the  State  testifies  that  Av.stin 
first  threw  a  stick,  and  next  a  brick,  at  Anderson,  and  then 
Ander-on  threw  a  frow  at  him,  and  that  both  parties  were 
standing  I'.p  when  the  shooting  was  done. 

The  t(^stimonv  for  the  defense  is  to  the  effect  that  Austin,  as 
he  passed  Anderson,  who  was  working  at  a  crib  with  the  frow, 
was  hailed  by  Anderson,  who  said  he  wanted  to  settle  that  little 
"rucus,"  when  Austin  said  he  thought  it  was  settled,  to  Avhich 
Anderson  replied,  "I  meant  to  kill  you,  and,  God  damn  you, 
I  am  going  to  kill  you,"  when  defendant  turned  to  go  away, 
and  Anderson  threw  the  frow,  striking  him  in  the  back  and 
knocking  him  down,  and  that,  while  he  was  doA\Ti,  Anderson 
advanced  on  him  Avith  an  ax  raised  to  strike,  and  Austin,  while 
down,  and  while  Anderson  was  so  advancing,  shot  him  twice. 
There  seems  no  doubt  that  Austin  was  struck  in  the  back  with 
the  frow,  and  there  is  no  doubt  either  that  both  the  pistol  balls 
ranged  ui)wards,  one  striking  just  above  the  kneecap  and  going 
up  into  the  groin,  and  the  other  striking  at  the  base  of  the  spinal 
vertebrie  and  going  up  inside  of  the  body. 

There  is  conflict  in  the  evidence  as  to  the  location  of  the  ax 
and  frow  and  the  hats  of  the  men  immediately  after  the  killing. 
It  is  perfectly  plain  tliat  the  wounds  from  the  pistol  could  not 


PULPUS  r.  STATE. 


289 


liave  been  iiifllcttMl  by  tlio  man  who  used  the  pistol,  if  he  had 
been  standiuif  up. 

Under  this  presentation  of  facts,  the  court  gave  the  follow- 
ing instrnetion  at  the  instance  of  the  State:  "The  court  instructs 
the  jury  that,  if  they  believe  from  the  evidence  in  this  case, 
beyond  a  reasonable  douljt,  that  Austin  Pulpus  was  hunting 
George  Anderson  to  kill  him,  armed  with  a  deadly  weapon 
provided  for  that  purpose,  and  that,  when  he  found  Anderson, 
lie  provtjked  a  difficulty  witli  Anderson,  or  was  the  aggressor 
in  the  difricnlty  in  which  he  killed  Anderson,  then  he  is  guilty 
of  murder,  even  thoujih  lie  killfd  Anderson  in  self-defense,  and 
the  jury  should  so  iiiid."  We  think,  on  the  evidence  in  this 
record,  the  granting  of  this  instruction  was  fatal  error.  Lofton 
V.  State,  T!)  .Miss.  72:5,  .">1  South.  420,  and  the  other  citations 
in  the  bri(  fs  for  apjiellant.  It  must  l)e  quite  an  overwhelming 
case  ftir  llie  State  on  the  I'licts  to  keej)  this  instruction  from 
Ixing  reversible  error.  It  wholly  excludes  any  consideration  of 
the  doctrine  of  torus  pcnili'ntiae,  even  where,  as  here,  there  is 
evidence  of  an  abundoninent  of  the  conflict.  It  is  not  strictly 
correct  as  written.  Oii<»  may  provide  liimself  with  a  deadly 
weapon  and  Imiit  another,  with  design  to  kill  him  with  it,  and 
provoke  and  be  the  aggn  s-^or  in  the  encounter  in  which  he  kills 
the  other,  and  still,  in  the  ])rogress  of  the  difficulty  should  not  bo 
denied  the  right  of  self-det'ense,  if  tli(>  killing  be  not-  pursuant 
to  the  original  purpovse  to  kill.  If  he  abandons  the  conflict,  and 
is  fleeing  from  it  in  gi ;<.d  f;iith,  and  not  for  vantage,  he  may 
defend  himself  from  threatened  death  or  gi*eat  bodily  harm. 
Lofton  V.  Slate,  79  ^Nfiss.  734,  31  So.  Kej).  420. 

We  think  it  was  error  to  iiermit  the  State  to  show  that  Arthur 
Orr,  who  was  jointly  indicted  with  a])pellant,  and  Avas  under 
bond  for  a]ipearance,  was  out  of  the  State,  and  not  pi'esent  pur- 
suant to  his  bond.  People  v.  Stanley,  47  Cal.  114,  17  Am.  Eep. 
401,  and  the  other  citations  of  counsel's  brief. 

Reversed  and  remanded. 


f\i'". 


:^''i: 


irr 


Notes  (By  J.  F.  G.) — The  fact  that  the  person  seeks  a,  meeting 
with  another,  for  the  purpose  of  provoking  a  dfTlculty,  does  not  deprive 
him  of  the  right  of  self  defense.    Mosee  v.  State.  11  Am.  Crim.  Rep.  14S. 

On  the  iaw  of  self  defense,  see— 11  Am.  Crim.  Rep.  136-140,  681,  689, 
690,  69:?;  also  index  to  10  Am.  Crim.  Rep.;  also  Table  of  Topics  in  the 
present  volume. 

We  intend  to  prepare  a  collection  of  cases,  with  general  notes,  on 
Vol.   XIII— 19 


i'h 


290 


AMERICAN  CRIMINAL  REPORTS. 


the  law  of  self  defense,  for  a  future  volume;  however,  at  this  time 
we  will  call  the  attention  of  the  reader  to  the  masterly  presentation  at 
the  subject,  by  Sir  Michael  Foster  in  the  third  chapter  of  his  Discourse 
on  Homicide.  (Foster's  Crown  Law  273.)  That  chapter,  exclusive 
of  marginal  citations  and  foot  notes,  reads  as  follows: 

CHAP.  III. 
Homicide  Founded  in  Necessity. 

Sect.  1.  SELF-DEFENSE  naturally  falleth  under  the  head  of  homi- 
cide founded  in  necessity,  and  may  be  considered  in  two  different  views. 

It  is  either  that  sort  of  homicide  se  <£•  sua  defendendo,  which  ia  pei- 
f.  tly  innocent  and  justifiable,  or  that  which  is  in  some  measure 
blameable  and  barely  excusable.  The  want  of  attending  to  this  dis- 
tinction hath,  I  believe,  thrown  some  darkness  and  confusion  upon 
this  part  of  the  law. 

The  writers  on  the  Crown-law,  who,  I  think,  have  not  treated  the 
subject  of  self-defense  with  due  precision,  do  not  In  terms  make 
the  distinction  I  am  aiming  at,  yet  all  agree  that  there  pre  caser  in 
which  a  man  may  without  retreating  oppose  force  to  force,  even  to 
the  death.    This  I  call  justifiable  self-defense,  they  justifiable  homicide. 

Thev  likewise  agree,  that  there  are  cases  in  which  the  defendant 
can'  ,  avail  himself  of  the  plea  of  self-defence  without  showing  that 
he  retreated  as  far  as  he  could  with  safety,  and  then,  merely  for  the 
preservation  of  his  own  life,  killed  the  assailant.  This  I  call  self- 
defense  culpable,  but  through  the  benignity  of  the  law  excusable. 

In  the  case  of  justifiable  self-defense  the  injured  party  may  repel 
force  by  foEce  in  defense  of  his  person,  habitation,  or  property,  against 
one  who  manifestly  intendeth  and  endeavoureth  by  violence  or  suiprize 
to  commit  a  known  felony  upon  either.  In  the;e  case?  he  is  not  obliged 
to  retreat,  but  may  pursue  his  adversary  till  he  findeth  himself  cit 
cf  danger,  and  if  in  a  conflict  between  them  he  happened  to  kill,  such 
killing  is  justifiable. 

The  right  of  self-defence  In  these  cases  is  founded  in  the  law  oi' 
nature,  and  is  not,  nor  can  be,  superseded  by  the  law  of  society. 
For  before  civil  societies  were  formed,  (one  may  confeive  of  such  a 
state  of  things,  though  it  is  difficult  to  fix  the  period  when  civil  so- 
cieties were  formed,)  I  say  before  societies  were  formed  for  mutual 
defence  and  preservation,  the  right  of  self-defence  resided  in  indi- 
viduals; it  could  not  reside  elsewhere;  and  since  in  cases  of  necessi- 
ty, individuals  incorporated  into  society  cannot  resort  for  protection 
to  the  law  of  the  society,  that  law  with  great  propriety  and  ttrii  t 
justice  considereth  them,  as  still,  in  that  instance,  under  the  protection 
of  the  law  of  nature. 

I  will,  by  way  of  illustration,  state  a  few  cases,  which  I  conceive, 
are  reducible  to  this  head  of  justifiable  self-defence. 

Where  a  known  felony  is  attempted  upon  the  person,  be  It  to  rob 
or  murder,  here  the  party  assaulted  may  repel  force  by  force;  and 
his  servant  then  attendant  on  him,  or  any  other  person  present  may 


PULPUS  V.  STATE. 


291 


interpose  for  preventing  mischief;  and  If  death  ensueth,  the  party  so 
inteiposing  will  be  justified.  In  this  case  nature  and  social  duty 
co-operate. 

A  woman  in  defence  of  her  chastity  may  lawftilly  kill  a  perse-". 
attempting  to  commit  a  rape  upon  her.  The  injury  intended  can  never 
bo  repaired  or  forgotten;  and  nature,  to  render  the  sex  amiable,  hath 
implanted  in  the  female  heart  a  quick  sense  of  honour,  the  pride  of 
VM-tuc,  which  kindleth  and  enflameth  at  every  such  instance  of  hiutal 
lust.  Here  the  law  of  self-defence  plainly  coincideth  with  the  dictates 
of  nature. 

An  attempt  is  made  to  commit  arson  or  burglary  in  the  habitation; 
the  owner,  or  any  part  of  his  family,  or  even  a  lodger  with  him  may 
lawfully  kill  the  assailants  for  preventing  the  mischief  intended.  Here 
likewise  nature  and  social  duty  co-operate. 

In  Mmcyridge's  case,  he,  upon  words  of  anger  between  him  and  Mr. 
Cope,  threw  a  bottle  with  great  violence  at  the  head  of  Mr.  CoDe,  and 
immediately  drew  his  sicord.  Mr.  Cope  returned  the  bottle  with  equal 
violence.  "It  was,"  saith  Lord  Holt,  lawful  and  justifiable  in  Mr.  Cope 
so  to  do.  "For,"  as  he  argueth  a  little  afterwards,  "He  that  hath 
viauifcded,  that  he  hath  malice  against  another  is  not  fit  to  be  trusted 
icith  a  dangerous  treapon  in  his  hand." 

It  was  upon  this  principle  I  presume,  and  possible  too  upon  the 
rule  already  laid  down  touching  the  arrest  of  a  person  who  had  given 
a  dangerous  wound,  that  the  legislature  in  the  case  of  the  Marquis 
(le  Giiiscard,  who  stabbed  Mr.  Harley  sitting  in  council,  discharged 
the  party  who  was  supposed  to  have  given  him  the  mortal  wound  from 
all  manner  of  prosecution  on  that  account;  and  declared  the  killing 
to  be  a  lawful  and  necessary  action. 

Sect.  2.  I  will  now  proceed  to  that  sort  of  self-defence  which  is 
culi)al)Ie  and  through  the  benignity  of  the  law  excusable.  And  this 
si)eLiea  of  self-defence,  I  choose,  upon  the  authority  of  the  statute 
of  Hen.  Vlll.,  to  distinguish  from  the  other  by  the  name  of  homicide 
so  defcndendo  upon  chance-medley.  The  term  chance-medley  hath  been 
very  improperly  applied  to  the  case  of  accidental  death,  and  in  vulgar 
speech  we  generally  affix  that  single  idea  to  it.  But  the  antlent  legal 
Ufitlon  of  homicide  by  chance-medley  was  when  death  ensued  from  a 
combat  between  the  parties  upon  a  sudden  quarrel.  How,  upon  the 
special  circumstances  of  the  case,  the  species  of  homicide  se  defendcndo 
which  I  am  now  upon  Is  distinguishable  from  that  species  of  felonious 
hciiiiiide  which  we  call  manslaughter  will  be  presently  considered. 

The  difference  between  Justiflable  and  excusable  self-defence  appear- 
eth  to  me  to  be  plainly  supposed  and  pointed  out  by  the  statute  I  have 
just  mentioned;  for  after  reciting  that  it  had  been  doubted  whether  a 
I)orsou  killing  another  attempting  to  rob  or  murder  him  under  the 
circumstances  there  mentioned  should  forfeit  goods  and  chattels, 
"As,"  proceedeth  the  statute,  "any  other  person  should  do  that  by 
chance-medley  should  happen  to  kill  or  slay  any  other  person  in  his 
or  their  defence,"  it  enacteth,  That  in  the  case  first  mentioned  the 


!> 


292 


AMERICAN  CRIMINAL  REPORTS. 


party   killing  shall  forfeit  nothing,   but   shall   be   discharged   in   like 
manner  as  if  lie  were  acquitted  of  the  death. 
I  will  make  an  observation  or  two  upon  this  act. 

1.  Though  It  expressly  provideth  against  a  forfeiture  in  the  special 
cases  therein  mentioned,  upon  tvhiih,  saith  the  preamble,  doubts  had 
arisen,  that  express  provision  doth  not  imply  an  exclusion  of  any  other 
cases  of  justifiable  homicide,  which  stand  upon  the  same  foot  of 
reason  and  justice;  for  the  stai  ite  was  plainly  made  in  affirnmnr'e 
of  the  common-law,  and  to  re  i  doubt,  that  had  been  entertained 
in  the  casCi."-  specially  proviue.       . . 

2.  Two  caiies  of  self-defei\c  ..,  .uiposed.  In  the  one  a  forfoiUiro 
of  goods  was  incurred,  in  the  other  mt.  What  therefore  Is  the  true 
import  of  the  words  self-defi:u:e  upon  chnDce-medlcy,  which  the  statute 
useth  as  descriptive  of  that  offun^  whK.!  'Id  incur  the  forfeiture? 
Homicide  per  infortunium,  which  hatli  boon  ,  Lyled  chance-medley, 
cannot  possibly  be  meant;  .or  in  that  case  the  party  killing  is  sup- 
posed to  have  no  intention  of  hurt;  whereas  in  the  case  the  stalut;! 
nientioneth  he  is  presumed  to  have  an  intention  to  kill  or  to  do 
some  great  bodily  harm  at  the  time  the  death  hapiwned  at  leant, 
but  to  have  done  it  for  the  preservation  of  his  own  life.  The  v.onl 
chance-medley  therefore,  as  it  standeth  in  this  statute  connected  with 
seif-defence,  must  be  understood  in  the  sense  which  Coke  and  Kelywj, 
In  the  passages  already  cited,  say  was  the  original  imi)ort  of  it,  a 
sudden  casual  affray  commenced  and  carried  on  in  heat  of  blcod; 
and  consequently  self-defence  upon  chance-medley  must,  as  I  apprehend, 
imply  that  the  person  when  engaged  in  a  sudden  affray  quitted  ilio 
combat  before  a  mortal  wound  given,  and  retreated  or  fled  as  fai  as 
he  could  with  safety,  and  then,  urged  by  mere  necessity,  killed  liis 
adversary  for  the  preservation  of  his  own  life. 

This  case  bordereth  very  nearly  upon  manslaughter,  and  in  fad 
and  experience  the  boundaries  are  in  some  instances  scarce  perceiv- 
able: but  in  consideration  of  law  they  have  been  fixed.  In  both  cases 
it  is  supposed,  that  passion  hatli  kindled  on  each  side,  and  blows 
have  passed  between  the  parties.  But  in  the  case  of  nianslau^htor 
it  is  either  presumed,  that  the  combat  on  both  sidt-s  hath  continued 
to  the  time  the  mortal  stroke  was  given,  or  that  the  party  giving  such 
stroke  was  not  at  that  time  in  imminent  danger  of  death. 

He  therefore  who,  in  the  case  of  a  mutual  conflict,  would  excuse 
himself  upon  the  foot  of  self-defence  must  shew,  that  before  a  mortal 
stroke  given  he  had  declined  any  further  combat  and  retreated  as 
far  as  he  could  with  safety;  and  also  that  he  killed  his  adversary 
through  mere  necessity,  and  to  avoid  immediate  death.  If  he  faileth 
in  either  of  these  circumstances  he  will  incur  the  penalties  of  man- 
slaughter. 

Tlie  authorities  I  sliall  cite  will  serve  to  explain  these  principles, 
and  in  some  measure  fix  the  boundaries  between  the  cases  of  man- 
slaughter and  excusable  self-defence. 

A.  being  assaulted  by  B.  returneth  the  blow,  and  a  fight  cnsucth. 


n 


PULPUS  r.  STATE. 


293 


A.  before  a  mortal  wound  given  decllneth  any  farther  conflict,  and  re- 
treiiteth  as  far  as  lie  can  with  safety,  and  then,  in  his  own  defence, 
l.illeth  B.;  this  is  excusable  self-defence;  though,  saith  Stanford,  A, 
l,;:il  given  several  blows  nut  mortal  before  his  retreat. 

But  if  the  mortal  stroke  had  been  first  given,  it  would  have  been 
niniiHlaughter. 

The  cases  here  put  suppose,  that  the  first  assault  was  made  upon 
Iho  party  who  killed  in  his  own  defence.  But  as  iu  the  case  of  man- 
slaughter upon  sudden  provocations,  where  the  parties  fight  on  equal 
terms,  all  malice  apart,  it  mattereth  not  who  gave  the  first  blow;  so 
in  this  case  of  excusable  self-defence,  I  think  the  first  assault  In  a 
sudden  affray,  all  malice  apart,  will  make  no  difference,  if  either  party 
(jiiiltcth  the  combat  and  retreateth  before  a  mortal  wound  be  given, 
Uut  if  the  first  assault  be  upon  malice,  which  must  be  collected  from 
(in  uinstanccs,  and  the  assailant,  to  give  himself  some  colour  for  put- 
ting in  execution  the  wicked  purposes  of  his  heart,  retreateth,  and 
tl:tn  turneth  and  killeth,  this  will  be  murder.  If  he  had  killed  with- 
out retreating  it  would  undoubtedly  have  been  so;  and  ihe  craft  of 
Hying  rather  aggravateth  than  accuseth,  as  it  is  a  fresh  indication 
ol  the  malitia  already  mentioned,  the  heart  deliberately  bent  upon 
niis(hief. 

The  other  circumstance  necessary  to  be  proved  in  a  plea  of  self- 
defence  is,  that  the  fact  was  done  from  mere  necessity,  and  to  avoid 
immediate  death.  To  this  purpose  I  will  cite  a  case  adjudged  upon 
gieat  deliberation.  It  was  the  case  of  one  Xailor,  wliich  came  on  at 
O.  H.  in  Apr.  1704,  before  Holt,  Tracy,  and  Bury. 

The  prisoner  was  indicted  for  the  murder  of  his  brother,  and  the 
case  upon  evidence  appeared  to  be,  that  the  prisoner  on  the  night 
the  fact  was  committed  came  liorae  drunk.  His  father  ordered  him 
to  go  to  bed,  whicli  he  refused  to  do;  whereupon  a  scuffle  liapuened 
betwixt  the  father  and  son.  The  deceased,  who  was  then  in  bed, 
lunuing  the  disturbance  got  up,  and  fell  upon  the  prisoner,  threw  him 
down,  and  beat  him  upon  the  ground;  and  there  kept  him  down,  so 
tliat  he  could  not  escape,  nor  avoid  the  blows;  and  as  they  were  so 
striving  together  the  prisoner  gave  the  deceased  a  wound  with  a 
penknife;  of  which  wound  he  died. 

Tl'.e  judges  present  doubted,  whether  this  was  manslaughter  or  se 
dcfcndcndo,  and  a  special  verdict  was  found  to  the  effect  before  set 
forth. 

After  Michaelmas  term,  at  a  conference  of  all  the  judges  of  England, 
it  was  unanimously  holden  to  be  manslaughter;  for  there  did  not  ap- 
l>ear  to  be  any  inevitable  necessity  so  as  to  excuse  the  killing  in  this 
manner. 


m 


Foster's  Crown  Lata,  a  recognized  authority  on  Criminal  law — Xeces- 
I  it  J  for  a  new  edition. — Mr.  Blackstone  was  evidently  a  close  student 
of  Foster's  Crown  Law.  A  striking  illustration  of  this,  is  the  sim- 
ilarity of  their  views  on  the  law  regarding  confessions.    (See  12  Amer. 


m 


If! 


294 


AMERICAN  CRIMINAL  REPORTS. 


Ci-lm.  Rep.  CI.)  Other  writers  and  courts  have  accepted  Mr.  Foster 
as  authority  on  criminal  law;  yet  all  that  he  wrote  upon  this  subje-i 
Is  in  one  small  volume,  part  of  which  is  devoted  to  a  report  of  iini)oi- 
tant  cases  tried  in  his  court.  Gradually  this  valuable  book  has  re- 
tired from  view;  is  out  of  print  and  but  a  few  scattering  copies  ao 
to  be  found.  Is  this  great  work  to  be  lost  to  the  professionf  If  not 
let  the  profession  make  botta-fide  calls  for  It,  and  the  demand  will  bo 
supplied  by  a  new  edition.  The  question  with  law' publishers  is:  Will 
there  be  a  sale  for  the  book  when  published?  In  this  instance,  the  coat 
of  a  new  edition  will  be  comparatively  small;  for  it  needs  but  little 
work  in  editing.  It  should  simply  be  a  reprint,  with  the  original  pag- 
ing and  without  notes  or  comments.  It  needs  no  notes  or  comments; 
for  it  should  be  read  in  connection  with  the  cases  and  books  of  the 
present  time. 


Ross  V.  Commonwealth. 


21  Ky.  Law  Rep.  1344—55  S.  W.  Rep.  4. 

Decided  January  10,  1900. 

Homicide — Involuntary  Manslaugiitku:  Defense  of  a  brother — Threats 
— Res  gestae — Declarations-  Improper  cross  examination  and 
contradiction  of  witnesses — Instructions. 

1.  Even  though  there  be  no  Intention  to  kill,  a  stab  with  a  pocket  knife 

Is  likely  to  endanger  life;  hence  defendant  is  not  entitled  to  an 
instruction.  In  such  case,  on  the  law  of  involuntary  manslau'^nter. 

2.  It  was  shown  by  the  evidence,  that  shortly  before  the  homicide,  ami 

within  about  thirty  feet  of  the  deceased,  appellant  while  taHkint;; 
with  his  brother,  was  seen  to  draw  his  knife  held, — Accused  should 
have  been  permitted  to  show  why  he  did  so. 

3.  The  accused  stabbed  deceased,  who  at  the  time  was  choking  accused's 

brother.  It  was  error  to  reject  evidence,  to  show  that  the  brother 
when  immediately  afterwards  accused  of  the  homicide  said:  "I 
have  not  hurt  him,  I  only  struck  him  with  my  list;"  such  evidenro 
being  part  of  the  res  gestae  and  showing  the  nature  of  the  diffi- 
culty and  that  he  was  not  seeking  the  difficulty. 

4.  After  the  homicide  occurred,  the  accused  ran  to  his  father's  store 

and  was  told  to  go  home;  and  on  the  way  home  met  a  minister 
to  whom  he  expressed  his  regret;  held, — that  such  evidence  was 
too  remote  to  form  a  part  of  the  res  gestae. 

5.  The  prosecution  having  proved  threats  on  part  of  the  accused,  he 

should  have  been  permitted  to  show,  that  on  the  evening  before  the 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


ROSS  V.  COMMONWEALTH. 


295 


homicide  he  offered  to  make  up;  but  that  the  deceased  had  refused 
to  do  so. 

C.  Threatening  conduct  on  part  of  the  deceased  toward  the  arcur.ed,  a 
year  l)efore  the  homicide,  would  be  admissible,  if  such  bad  feeling 
continued  up  to  the  time  of  the  homicide. 

7.  A  wltnei-s  for  the  Commonwealth  having  testified  that  he  saw  the 
homicide,  the  defense  should  have  been  permitted  to  ask  the  wit- 
ness, whether  on  the  following  day  he  had  told  a  certain  person, 
tliat  at  the  time  of  the  homiciJe  he  was  behind  the  depot  and  did 
.    not  see  it. 

S.  It  is  Improper  on  cross  examination  to  interrogate  defendant's  wit- 
nesses as  to  whether  they  had  expressed  unfavorable  opinions  upon 
the  accused's  case  and  to  follow  this  by  rebuttal  testimony  upon 
the  same  subject,  such  expressions  relating  simply  to  opinions. 

f).  Instruetlon  number  5  criticised  and  new  form  suggested. 

10.  If  the  accused  and  his  brother  sought  the  deceased  and  commenced 
the  conflict  for  purpose  of  doing  serious  bodily  Injury  to  him  or 
killing  him,  the  accused  was  not  justified  in  stabbing  the  deceased 
in  defense  of  his  brother;  but  if  the  deceased  commenced  tbo  en- 
counter, by  striking  the  b-other  of  the  accused  and  the  accused  had 
reasonable  grounds  to  believe  that  his  brother  was  in  danger  of 
being  killed,  or  of  receiving  serious  bo.lUy  injury,  then  he  had  a 
right  to  use  reasonable  means  in  his  brother's  defense. 

Al)])cal  Iroiu  Circuit  Court,  Livingston  County. 

KenlxMi  Ross,  indicted  for  murder  and  convicted  of  nian- 
slauglitor,  ai)i)eals.     Reversed. 

J.  W.  Bush., I.  K.  llendrick,  J.  C.  Ilodgc,  and  C.  W,  M'<dts, 
for  the  ai)iKllant. 

HoiistiN,  J.  Api)ollaiit,  Keubcn  Ro.sa,  and  his  brother,  Tom 
Ross,  were  jointly  indicted  in  tlie  Livingston  Circuit  Court  f(ir 
the  murder  of  Walter  Hooks.  Appellant  was  tried  separately. 
The  jury  returned  a  verdict  finding  liini  guity  of  manslaugliter, 
and  fixing  his  punishment  at  21  years  in  the  penitentiary;  and, 
lis  motion  for  a  new  trial  having  heen  overruled,  and  judgment 
entered  upon  the  verdict,  he  prosecutes  this  appeal. 

It  appt^ars  from  the  proof  that  at  the  time  the  offense  was 
committed  ai)pellant  was  17  years  old;  that  he  and  Hooks  were 
going  to  the  same  school,  and  for  some  time  liad  been  on  bad 
terms;  that  Hooks  was  il  or  22  years  of  age,  and  weighed  100 
pounds,  while  appellant  weighed  only  125;  that  on  the  day  of 
the  homicide, — January  7,  1S98, — at  recess  of  the  school. 
Hooks  was  insulting  appellant,  and  was  also  insulting  to  him 


II! 


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tft 


J 


290 


AMERICAN  CRIMINAL  REPORTS. 


u 


tlint  nftornonn  wlirn  school  closed ;  that  one  of  tlio  younp;  Indies 
in  the  school  that  cvoniiig  rcciuestcd  apju'llaiit  to  meet  licr  at  the 
poslolHcc,  Jlooks  hciii<>'  near  by,  niakinji'  a  face  at  apitclhint  at 
the  time,  and  then  going  up  to  the  postotHco,  thongli  his  liomc 
lay  ill  aiiothov  directidn ;  that,  wlu  u  appclhint  approached  the 
jxistdliice,  J  looks  was  standing  at  the  door  and  appeHaMi's 
hrother,  Tom,  about  .'50  fiet  otV,  near  a  i)li<itogra|)her's  tent.  'J'oni 
IJoss  was  al)iiut  the  age  of  Hooks,  but  oidy  about  three-fourths 
his  size.  The  proof  is  conflicting  as  to  souk^  things  that  ■vverc 
said,  but  tlie  weight  of  the  evidence  estublishes  tiie  following 
facts  as  to  what  then  followed:  Ajipellant,  seeing  Hooks  at  the 
poslotiice  door,  said  to  his  brother  'i"(  ni,  that  Jlooks  bad  be<  n 
inipo--ing  on  him  all  day.  Tom  aske^l  him  if  he  bad  a  knile. 
A])jii  llant  said,  "Yes."  Tom  said,  "Give  it  to  me."  Appellant 
said,  "Xo,  I  will  keej)  it  mi)selt"."  Tom  then  went  <iver  to 
wlu  rt'  Hooks  was,  he  having  walked  towards  tbcaii  while  they 
were  talking,  ami  said  to  Ho<iks:  "What  are  you  imposing  on 
that  boy  for  ^  ^Vhy  don't  you  imjxisc  on  somebody  of  your 
age  ^"  Hooks  denied  imposing  on  the  boy,  but  appidlant,  who 
came  up,  said  he  had,  and,  aft<'r  some  other  words  passed,  both 
Hooks  and  Tom,  about  the  same  time,  began  lighting.  After 
son.e  blows,  Ho(-ks  got  Tom  by  the  throat,  and  was  eimking  him 
until  la;  was  getting  red  in  the  face  and  short  of  breath.  Ajipel- 
lant  then  slashed  away  at  Hooks'  head  with  his  knife.  He  says 
simply  for  the  purpose  of  making  Hooks  break  his  bold  on  his 
brotlii'i-'s  throat,  and  not  for  the  purpose  <\i'  seriously  hurting 
him.  But  the  knife  accidentally  struck  Hooks  in  the  temple, 
where,  it  appears  from  the  testimony,  there  is  a  s])ot  alniut  as 
large  as  a  dime  at  which  a  knit'e  blade  may  penc  trate  the  brain. 


Tl 


le  ))loo(. 


■ipu 


rtcd  out  tnnu  the  wound,  and  Hooks  died  in  a 


few  nunutes.  It  is  insisted  for  ap]iellant  that,  as  there  was 
testimony  showing  that  the  death  of  Hooks  was  accidental,  and 
not  reasonably  to  be  exjiected  from  the  blow  of  a])pellant,  he 
was  entitled  to  an  instruction  as  to  involuntary  manslaughter. 
The  knife  was  about  2U.  inches  long.  A  stab  from  it  was 
necessarily  dangerous,  and  would  often  l)e  deadly.  It  was  a 
dangerous  weapon.  Involuntary  nmnslaughter  is  defined  as: 
"The  killing  of  another  person  in  doing  some  unlawful  act  not 
amounting  to  a  felony,  nor  likely  to  endanger  life,  but  without 
an  intention  to  kill."  Hob.  Cr.  Law,  Xo.  11)8.  Althoui>h  there 
was  i;o  intcnticn  on  the  part  of  appellant  to  kill  Hooks,  his 


I  i 


ROSS  r.  COMMONWEALTH. 


297 


net  was  likely  to  ondanfjcr  life  nml  the  iiistnictidii  ns  to  in- 
vnliiHiiiry  lUiinslaughter  was  piMperly  vefuscil. 

Ai»|'i'llaiit  also  ('oiii|ilaiiH  of  the  errors  of  tlu;  Court  in  the 
aihiiissioii  and  ejection  of  cvith'nce.    'IMk  se  will  now  he  noticed. 
'Ihciv  was  j)r(M)f  hy  the  Conunonwealth  that  a]>p(llaiit,  while 
talking'  to  his  brother,  near  tic  tent,  drew  his  knife  out  of  hia 
liick(t.     He  otl'end  to  state  tint  while  he  was  talkiiiu,'  to  his 
j.i'ntlicr   Hooks   was  ey(  inj;'  them,   and   fiinilly   heiian    walkiiij;' 
t  wards  thcni,  keipinj;'  his  cyi':^  on  tluni,  and  he  thoii-^lit  Hooks 
\va>  alwinl  to  jump  (lU  him,  and  for  this  reason  drew  his  knife. 
'I  his  iiKittcr  was  so  nearly  eouneeted  with  the  fiulir  as  to  form 
part  of  the  (V'.s-  (jcslac,  and,  the  Conmionwealth  luiviun-  ]>roved 
lliiit  ajipellant  drew  liis  knife  at  this  lime,  he  should  liave  lieen 
iilli>\\r('  to  state  why  he  drew  it,  iKrause,  without  this  explana- 
tii)U,  liic  jury  may  have  inferred  that  ho  drew  it  for  the  |)ur- 
p,ii<e  of  makinj;'  an  attack  np(tn  Hooks.     As  soon  as  appellant 
saw  the  blood  spurt  fn  in  Hooks'  t(in])le,  he  ran  off  to  his  father's 
stnrc.     Hooks  and  Tom  Ivoss  eontinncd  to  stiMiuiile  for  a  few 
n:  iiieiits,  when  Hooks  fell  to  the  ground.     'I'he  tirst  person  to 
('(iiiic  up  to  them  was  William  \V(dls.   A[)|)ellant  olfei'cd  \n  prove 
hy  Wells  that  he  said  to  Tom  lioss  when  he  came  \\\),  "Vou  have 
killtd  him,"  and  Tom  re]>lied,  "I  have  not  liurt  hiiu ;    I  only 
struck  him  with  my  iist."     This  Avas  ])art  of  the  res  (jcsfnc,  and 
f-lionld  have  l)een   admitted,  as  it  would  tend  to  eonfinn  the 
tistimony  introduced  for  ai)p(  Uant  to  the  effect  that  Tom  was 
not  seekinji'  a  dillictdty  with  Hocks,  or  actin<f  in  concert  with 
apiidlant  to  make  an  attack  on  him  with  the  knife.     Appellant 
olT(  red  to  ])rove  that,  as  he  ran  fntm  the  sctsne  of  th(>  dilHculty 
tn  his  father's  house,  when  al>ont  aO  yards  off,  he  nut  Mr.  Tay- 
liir,  a  minister,  and  threw  his  arms  around  his  neck,  crying',  and 
said:   "I  am  afraid  I  have  killed  Walter  Hooks.     What  shall  I 
(1(1  ^''     It  appears  that  appellant  had  been  to  his  failier's  store, 
and  had  Inen  told  by  him  to  go  Innne.     The  conrt  ])roperly  held 
this  conversation  inadmissible  as  part  of  the  res  (jotnc.     It  was 
too  remote. 

The  ('onnnonw(  alth  proved  threats  made  by  appellant  against 
Hooks  some  time  before  the  homicide,  to  the  effect  that  lie  would 
hurt  him  if  Hooks  bothered  him.  He  then  offered  to  show  that 
fin  the  night  before  the  honiicido  he  offered  to  make  friends  with 
Hooks,  and  forget  all  differences,  and  that  Hooks  refused  to 
make  friends.     The  conrt  refused  this  evidence,  and  should 


%^\ 


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■t,^ 


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I 


'?, 


298 


AMERICAN  CRIMINAL  REPORTS. 


have  u<linittc'<l  it.  It  sorvrd  to  illu.strnto  the  fci'Iiii^s  Hooks  nnd 
npi)elhint  luul  for  each  other,  and,  if  aihuitted,  would  iiiatc- 
rially  have  coiiHrined  appellant's  version  of  what  took  phicc 
just  after  the  school  adjourned,  and  what  followed  in  front  of 
the  postotlice. 

A])])ellant  ali^o  offered  tf)  prove  hy  ^Irs.  J'urton  that  sonuthin^^ 
over  a  yciir  before  the  houiicide  Hooks  was  very  overhearitiji'  to 
him  at  tlic  well,  cursing  him,  and  threatening  to  put  iiim  in  it. 
This  transiietion  does  not  ai)j)ear  to  have  had  any  connection 
with  the  (lilliculty,  but  if,  on  another  trial,  it  shall  appcMi'  tlint, 
the  bad  feeling  between  them  was  conti.uious  from  this  time  to 
tl'o  homicidi',  tlu"  evidence  mav  Im-  admitted,  as  it  nuiv  serve  at 
least  to  eoiilirm  other  testimony  in  the  case. 

George  Howell  was  sworn  as  a  witness  for  the  rommon- 
wealtli,  and  lestitled  to  being  present  at  the  dilticnlty,  nnd  see- 
ing wluit  occurred.  He  was  then  asked  on  eross-examiuiitiou 
if  he  did  not  tell  F.  ().  Taylor,  the  next  day  after  the  ditliculty, 
at  the  riiih'oad  crossing  in  Grand  Rivers,  Ky.,  that  he  was  be- 
hind the  de]i(it  when  the  fight  came  uj),  and  did  not  see  or  liear 
any  of  it.  To  (his  question  the  Commonwealth  objected,  mil 
the  court  refused  to  alle)\v  it  to  be'  answereel.  The  ejuestiou  was 
proper,  and  should  have  Ixen  allenved,  for  if  he  had  state'd  out 
of  court  the  contrary  of  his  testimony  on  the  trial  it  was  ce>m- 
petent  for  a])pe'llant  to  show  this  to  affect  his  creelibility.  The 
question  laid  the  time  and  place  with  sulhcient  accuracy,  ami 
we  un<lerstand  from  the  form  of  the'  questie)n  that  no  one  was 
present  at  the  conversation  but  Howell  ami  Taylor.  The  rule 
is  that,  when  a  question  of  this  sort  is  asked  for  the  jnirposes  eif 
contradiction,  it  must  fix  with  reasonable  accuracy  the  time, 
place,  anel  persons  present  at  the  allegeel  eonversatie)n. 

Nora  ^liller,  a  witness  for  appellant,  was  askeel  on  cross- 
examination,  among  other  things,  if  she  had  not  said  that  she 
had  begge'el  Rube  not  to  get  into  this;  that,  as  soon  as  she  he-arel 
their  veiices,  she  knew  they  were  going  to  have  trouble.  This 
was  ine-onipetent,  as  it  did  not  contradict  anything  the  witness 
had  testiHed  to.  The  statements  were  at  most  only  opiniejus, 
and  not  facts,  and  they  only  served  to  prejudice  appellant  be- 
fore the  jury.  The  court  should  not  have  allowefl  the  witness  to 
be  interrogated  on  these  matters,  nor  proof  to  be  made  by  other 
witnesses  that  she  had  said  this. 

Lula  Miller  was  asked  if  she  had  nov  said  that  Rube  had  a 


ROSS  V.  COMMONWEALTH. 


299 


biul  caso,  niul  it  might  ;;<>  luird  witli  him,  nnd,  Imvin";  denied 
iiiiikitig  file  statc'iiu'iits,  proof  was  admitted  that  she  had  made 
I  hem.  This  was  error,  and  very  prejiidieial  to  appeUant,  as  it 
got  before  the  jury,  not  the  facts  of  the  case,  but  a  mere  conclu- 
sion of  one  of  appellant's  witnesses  as  to  its  merits,  when  this 
was  the  thing  the  jury  were  to  try  from  the  evidence  before 
them. 

iJy  the  words,  "nnd  there  were,  as  apjienrcd  to  the  defendant, 
liiihe  IvKss,  and  I's  he  believed,  no  other  nnd  apparent  safe 
means  of  escape,"  in  instruction  Ko.  5,  the  court  Ih'Iow  evidenf- 
Iv  meant  no  other  apparently  safe  means  of  escape,  and  on 
ther  trial  it  will  be  In'tter  to  substitute  for  the  nl)ove,  in  this 
•net ion,  the  following:  **Tiint  there  were  no  other  nppar- 
e..,iy  safe  means  of  escape."  The  court  properly  instructed 
the  jury,  by  instruction  Xo,  0,  that,  if  Tom  Uoss  nnd  appellant, 
or  Tom  with  ai>pellant's  knowledge,  songht  and  commenced  the 
(iintlict  with  Hooks  for  the  purj)ose  of  killing  him,  or  inflicting 
great  bodily  harm  upon  him,  then  appellant  could  not  be  ac- 
(piitted  on  the  ground  that  he  acted  in  defense  of  his  brother  in 
stabbing  Hooks.  There  was  no  evidence  of  a  witlidrawal  from 
the  conflict.  J»ut  on  another  trial,  if  the  evidence  is  substan- 
tially the  same,  it  will  \)g  proper  to  give  the  jury  the  converse 
of  this  instruction;  that  is,  that  if  Tom  approached  Hooks,  not 
for  the  purpose  of  a  dithculty,  or  for  the  purpose  of  killing  him, 
or  inflicting  njnm  him  great  bodily  harm,  and  Hooks  first  l)ogan 
the  conflict  by  striking  Tom,  or  making  a  demonstration  to 
strik(>  him,  and  npi)ellant  l)e]ieved,  and  had  reasonable  groiinds 
to  believe,  that  Hooks  was  then  and  there  about  to  kill  Tom,  or 
inflict  great  bodily  barm  upon  him,  then  he  had  the  right  to  use 
snch  means  in  defense  of  his  brother  as,  in  the  exercise  of  a  rea- 
sonable jndgment,  were  apparently  necessary  for  his  safety,  as 
set  out  in  instruction  Xo.  5. 

Judgment  reversed,  and  canse  remanded  for  a  new  trial  and 
further  proceedings  not  inconsistent  with  this  opinion. 


>hi» 


I 

1 

1 

'  1 1 

1 

1 

hi  I 

1 

■ 

300 


AMERICAN  CRIMINAL  REPORTS. 


Drury  v.  Territory. 

9  Okl.  398— CO  Pac.  Rep.  101. 

Decided  February  8,  1900. 

HOMICIDK — iNDK'iWrENT    AGAINST    ACt'KSSORY    UNDER   STATUTE    AIAKlNf;    Iini 

A  I'uiNcii'Ar,:  Practice  as  to  evidence  and  ohieclions — The  prose- 
cution contradicts  its  own  icitness  hy  showing  statements  of 
such  uitnens  regarding  a  supimsed  confession — When  the  admis- 
sion of  prejudicial  evidence  is  not  cured  by  striking  it  out — 
Presence  cf  the  accnsel,  not  in  itself  an  overt  act — Instructions 
not  c.cccplcd  to — Specific  objection  to  evidence  limited  to  the 
point  made — Practice  a:j  to  proving  admissions  of  the  accused. 


w 

m 

t 
I'. 

i 


1.  By  the  provisions  of  our  rdnies  act,  all  distinction  botween  an  ac- 
cessory before  the  fact  and  a  principal,  and  between  principals  in 
the  first  and  second  degree  in  cases  of  felony,  arc  abolished,  and  all 
persons  ccnrorncd  in  the  commisEion  of  a  felony,  whether  they 
directly  commit  the  act  constituting  the  offense  or  aid  and  abet 
in  its  commission,  though  not  present,  must  be  indicted,  tried,  and 
punii;.ied  as  principals. 

?.  All  these  persons  who  at  the  common  lavvr  were  classed  as  i)rincipals, 
principals  in  the  first  degree,  principals  in  the  serond  de-;ree,  ac- 
ceLSories  at  the  fact  and  accessories  before  the  fact,  are,  under  our 
statutes,  made  principals;  while  tlio;e  who  were  classed  as  iicco.s- 
Eoiics  after  the  fact  are,  by  the  terms  of  the  statute,  denominated 
a-,  i-esscries. 

3.  One  who  was  present  at  the  commission  of  a  felony,  and  was  aiding 

r.nd  abetting  the  one  who  committed  the  overt  act,  was  at  common 
law  a  principal  in  the  second  degree,  and  is,  under  tlio  statute, 
a  ijrincipal.  In  charging  such  offense,  it  is  not  neicssary  to  aliege 
any  facts  other  than  would  be  necessary  in  charging  the  prin- 
cii)al  who  committel  the  overt  act. 

4.  An  indictment  for  murder  is  sufficient  which  clmrges  that  A.  and 

B,  in  and  upon  one  C,  felonously,  without  authority  of  law,  and 
with  a  premeditated  design  to  effect  tlie  d(!ath  of  the  said  C, 
did  make  an  assault,  and  the  said  A.,  a  certain  revolving  pistol 
then  and  there  charged  with  gunpowder  and  leaden  bullet,  which 
he,  the  said  A.,  then  and  therj  held,  and  then  and  there,  without 
authority  of  law,  and  with  a  premeditated  design  to  effect  the 
death  of  the  said  C,  did  shoot  off  and  discharge,  at  and  against 
the  said  C,  thereby  giving  to  him,  the  said  C,  then  and  there 
with  the  leaden  bullet  aforesaid,  so  shot  off  and  discharged  as 
aforesaid,  one  mortal  wound.  In  and  through  the  head,  of  which 
mortal  wound,  he,  the  said  C,  then  and  there  instantly  died.    And 


For  ( ascs  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


DRURY  V.  TERRITORY. 


.     301 


the  said  B.,  was  then  and  there  felonously,  without  authority  of 
law,  and  with  premeditated  design  to  effect  the  death  of  the  said 
C,  present  aiding  and  abetting  the  murder  aforesaid,  in  manner 
and  form  as  aforesaid  to  do,  commit  and  perpetrate.  And  the  jur- 
ors aforesaid,  upon  their  oaths  aforesaid,  do  say  that  the  said 
A.  and  B.,  him,  the  said  C,  in  the  manner  and  by  the  means  afore- 
said, without  authority  of  law,  and  with  a  premeditated  design 
to  effect  the  death  of  the  said  C,  did  kill  and  murder,  contrary 
to  the  form  of  the  statutes  in  such  cases  made  and  provided,  and 
against  the  peace  and  dignity  of  the  Territory  of  Olilahoma.  Such 
indictment  charges  B.  as  a  principal,  and  not  as  an  accessory,  and 
the -fact  that  the  indictment  charges  the  particular  manner  in 
which  B.  Is  held  as  a  principal  gives  him  no  cause  to  complain,  be- 
cause the  Indictment  is  mere  specific  than  the  statute  requires. 

5.  This  court  will  not  set  aside  the  verdict  of  a  jury  on  the  ground  that 
incompetent  and  Immaterial  evidence  was  permitted  to  go  to  the 
jury,  where  the  record  shows  that  such  evidence  was  not  objected 
t.i  by  tlie  defendant,  and  no  motion  was  made  to  stiilve  it  out. 

C  Instructions  given  by  the  court,  and  not  excepted  to  by  the  defendant 
at  the  trial,  or  before  the  trial  court,  will  not  be  reviewed  on  ap- 
peal. 

7.  Where  objection  Is  made  to  the  introduction  of  evidence  on  some  par- 

ticular ground,  which  is  not  well  taken,  the  court  will  not  treat 
such  ol)jection  as  general,  and  hold  that  it  was  error  to  permit 
such  evidence  to  go  to  the  jury  for  simie  reason  not  stated  in  the 
objection. 

8.  When  the  prosecution  is  seeking  to  prove  admissions  made  by  the 

defendant  tending  to  show  his  guilt,  it  is  not  required  that  the  par- 
ticulars of  time,  place,  and  persons  shall  be  given  before  the  wit- 
ness is  permitted  to  testify  to  such  admissions. 

9.  Where  a  witness  is  called  for  the   prosecution,  and   asked  if  the 

defendant  had  not  made  certain  statements  In  the  nature  of  con- 
fessions or  admissions  to  him,  and  the  witness  denies  that  any 
such  statements  were  made,  it  is  error  to  permit  the  attorneys  for 
the  prosecution  to  testify  that  the  witness  had  stated  to  them  that 
the  defendant  had  made  to  the  witness  the  statements  inquired 
about,  and  to  permit  such  attorneys  to  testify  what  the  witress 
had  told  them  the  admissions  and  confessions  were. 

10.  Where  the  trial  court  has  permitted  illegal  and  incompetent  evi- 
dence to  go  to  the  jury,  and  subsequently  withdraws  such  evidence, 
and  directs  the  jury  to  disregard  it,  and  give  such  evidence  no 
consideration,  the  correct  rule  for  determining  whether  such  action 
is  reversible  error  is,  if  the  Illegal  evidence  was  of  such  a  char- 
acter as  would  ordinarily  create  such  prejudice  against  the  defend- 
ant ns  was  reasonably  circulated  to  make  a  fixed  impression  on 
the  minds  of  the  jury  and  influence  their  verdict,  and  the  court, 
from  an  examination  of  the  whole  case,  is  unable  to  say  that  such 
evidence  did  not  affect  the  verdict,  or  that  the  verdict  would  not 


;'i. 


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1302 


AMERICAN  CRIMINAL  REPORTS. 


i     I 


i 


probably  have  been  different  in  any  event,  then  the  verdict  should 
be  set  aside,  and  new  trial  ordered. 

11.  Where  one  is  charged  with  the  crime  of  murder,  and  it  is  alleged 
that  another  committed  the  overt  act  in  the  perpetration  of  the 
crime,  it  is  not  sufficient  to  show  that  the  defendant  was  present, 
and  knew  the  offense  was  being  committed.  The  proof  must  go 
further,  and  show,  beyond  a  reasonable  doubt,  that  he  was  partici- 
pating in  the  homicide  before  or  at  the  time  of  its  commission. 

12.  The  evidence  in  this  case  examined,  and  held,  that  the  illegal 
evidence  admitted,  and  subsequently  withdrawn,  was  of  such  a  dam- 
aging and  prejudicial  character,  and  the  legal  and  competent  evi- 
dence of  such  weak  and  uncertain  character,  that  the  court  cannot 
say  that  the  jury  were  not  probably  misled  and  influenced  by  the 
illegal  evidence,  and  a  new  trial  sho:ild  be  ordered. 

(Syllabus  by  the  Court.) 

Error  from  District  Court,  Garfield  County ;  Justice  Jolni 
L.  McAtce. 

Joseph  Drury  and  one  Crandall,  convicted  of  murder.  Driiry 
brings  error.     Reversed. 

Buckner  &  Son,  for  the  plaintiff  in  error. 

Harper  S.  Cunningham,  Attorney  General,  for  the  Territory. 

Opinion  of  the  Court  by  Blrfoup,  C.  J. 

The  defendant,  Drury,  and  one  Crandall,  were  tried  and 
convicted  for  the  crime  of  murder.  Drury  appeals  to  this  court. 
The  lirst  contention  of  plaintiff  in  error  is  that  the  court  err(>(l 
in  ttverrnlini^'  the  dennirrer  to  the  indictment.  The  indictment, 
after  the  formal  parts,  charges  as  follows: 

''That,  dolm  W.  Crandall  and  .Inscph  Drury,  late  of  said 
countv,  on  the  fourth  dav  of  February,  in  the  vcar  of  our  Lord 
one  thousand  eight  hundred  and  ninety -eight,  in  the  said  County 
of  Garlicld,  Territory  of  Oklahonni,  in  and  upon  one  John  !Mc- 
Coy,  then  and  there  being,  feloniously,  willfully,  of  their  ma- 
lice I'forethought,  without  authority  of  law,  and  with  a  pre- 
nieditnted  design  to  effect  the  death  of  the  said  John  McCoy, 
(lid  make  an  assault;  and  that  the  said  John  W.  Crandall,  a 
c;rtain  revolving  pi.stol  then  and  there  charged  and  loaded  with 
gunpowder  and  a  leaden  l)ullet,  which  he,  the  said  dohn  \V. 
Crandall,  then  and  there  had  and  held,  at  and  iigaiust  the  said 
John  McC'Oy,  then  ami  there  feloniously,  willfully,  purposely, 
of  his  malice  aforethought,  witlknit  authority  of  law,  and  with 


DRURY  I'.  TERRITORY. 


303 


a  premeditated  design  to  effect  the  doalli  of  the  said  John  Mc- 
Coy, did  shoot  olF  and  discharge,  and  that  said  John  W.  Cran- 
dall,  with  the  leaden  bullet,  out  of  the  pistol  aforesaid,  then 
and  thei'e,  by  force  of  the  gunpowder  aforesaid,  by  the  said  John 
\\\  Crandall,  discharged  and  shot  olf  as  aforesaid,  at  and  against 
the  said  John  McCoy,  did  then  and  there  feloni(iusly,  willfully, 
purposely,  of  his  malice  aforethought,  without  authority  of  law, 
and  svith  a  premeditated  design  to  effect  the  death  of  the  said 
,luhn  AlcCoy,  strike,  penetrate,  and  wound  the  said  John  Mc- 
Coy in  and  upon  the  head  of  the  said  John  Mc(^)y,  giving  to 
him,  the  said  John  ^McCoy,  then  and  there,  with  [ho  leaden 
bullet  aforesaid,  so  as  aforesaid  discharged  and  shot  out  of  the 
])istol  aforesaid,  by  the  said  John  W.  (yrandall,  at  and  against 
the  said  John  McC^iy  as  aforesaid,  one  mortal  wound,  in  and 
through  the  head  of  him,  the  said  -lolin  ^leCoy,  <if  which  mor- 
tal wtiuiid  the  said  John  McCoy  did  then  and  there,  U>  wit:  in 
the  County  of  Gartield,  and  Territory  of  Oklahoma,  on  the 
fdurlh  (lay  of  February,  A.  I).  IS'JS,  die;  and  that  the  aforesaid 
Joseph  Drury  then  and  there  feloniously,  willfully,  of  his  ma- 
lice afiirethouglir,  without  authority  of  law,  and  with  a  pre- 
meditated design  to  eilVct  the  death  of  the  said  Jnlni  McCViy, 
was  ])resent,  aiding,  helping,  abetting,  comforting,  assisting, 
maintaining,  and  advising  the  murder  aforesaid,  in  manner  and 
form  aforesaid,  to  do,  connnit,  and  perpetrate.  AikI  tlu^  jurors 
aforesaid,  ui)on  their  oaths  aforesaid,  do  say  that  tbe  said  John 
W.  Craiidall  and  J()S(>])h  Drury,  him,  the  said  Jdhn  McCoy,  in 
the  manner  and  by  the  means  aforesaid,  feloniously,  willfully, 
purpost  ly,  of  their  nudice  aforethought,  without  authority  of 
law,  and  with  a  |)remcditated  design  to  effect  the  ilealh  of  the 
said  .lol'.n  McCoy,  did  kill  and  nnirtler,  contrary  to  the  form  of 
the  statutes  in  such  case  made  and  ])rovided,  and  against  the 
peace  and  dignity  (f  the  Territory  of  Oklahoma.'' 

It  is  the  contention  of  counsel  for  plaintiff  in  error,  that  this 
indictment  charges  Cnindall  as  a  ])rincipal  in  the  ciinic,  and 
Drtiry  as  an  accessory  U^fore  the  fact,  and  that  as  our  statute 
abolishes  these  distinctions,  and  requires  all  juMsons  concerned 
in  the  commission  of  a  felony  to  l)e  indicted,  trieil  and  pun- 
ished as  principals,  the  demurrer  should  have  been  sustained. 

Counsel  are  mistake  n  as  to  what  coi.stituted  one  aji  accessory 
at  conunon  law.  At  common  law,  persons  particii)ating  in  a 
crime  were  clas^^od  as  either  principals  or  accessories,  and,  if 


im 


f     [ 


5i 


'k 


In 


^^ 


4  1} 

n 


I  r 


304 


AMERICAN  CRIMINAL  REPORTS. 


the  crime  wns  a  felony  they  were  nlike  foldns.  Principals  were 
such  either  in  the  tirst  detrree  or  second  degree.  Princijials  in 
the  first  d('lrr^e  were  those  who  were  the  immediate  and  actual 
perpetrators  of  the  act.  rrinci])als  iu  tlie  second  degree  W(  re 
those  u'lo  did  not,  with  their  own  hands,  commit  the  act,  hut 
were  present  aiding  and  abetting  it.  The  presence  alone  of  the 
party  was  not  suthcicnt  to  constitute  him  a  princijial  in  the 
second  degree,  unless  he  was  aiding  and  abetting  the  perpetra- 
tor. This  implied  assent  to  the  crime.  Accessories  were  of 
two  classes:  Accessories  before  the  fact  were  those,  being  ab- 
sent at  the  time  the  felony  was  connnittetl,  yet  procured,  coun- 
seled, or  commanded  another  to  conuiut  it;  while  aii  accessory 
after  the  fact  Avas  one  who,  knowing  a  felony  to  have  been  com- 
mitted by  another,  received,  comforted,  or  assisted  the  felon. 

These  several  distinctions  have  been  ab<dished  by  statnte  iu 
this  Territory,  except  as  to  accessories  after  the  fact.  Section 
5087,  Sr.  Okl.  Ksi)3,  provides: 

"The  distinction  Ix'tween  an  accesscu'v  before  the  fact  and  a 
principal,  and  between  ])rinci])als  in  the  iirst  and  second  digree, 
in  cases  of  felony,  is  abrogated,  and  all  persons  concerned  in 
the  conmiission  of  a  felony,  whether  they  directly  conmiit  th(^ 
act  constituting  the  olfense,  or  aid  and  abet  in  its  commission, 
tbouuh  not  j)resent,  must  hereafter  be  indit^ted,  tried  and  pu!i- 
ished  as  principals,  and  no  additional  facts  need  be  alleged  iu 
any  indictment  against  siu'h  an  accessory  than  are  required  in 
an  indictn;ent  against  his  principal.'" 

In  the  crinn's  act  we  have  the  following  provisions: 

''Sec.  lSt;L>.  The  parties  to  crimes  are  classified  as — First, 
principals ;  and,  secon<l,  acces-^ories. 

"Sec.  Ist;;},  All  persons  concerned  in  the  commission  of 
crime  whether  it  be  felony  f)r  misdemeanor,  and  whether  tluy 
directly  commit  tie  act  constituting  the  offense,  or  aid  and  abet 
in  its  commission,  though  not  i)rcsent  are  principals. 

"Sec.  lS(i4.  All  ])crsous  wli(t,  after  the  commission  ot  any 
felony,  conceal  or  aid  the  offender,  with  knowledge  that  he  has 
connuitlcfj  a  felony,  and  with  intent  that  he  may  avoid  or  es- 
cape from  arrest,  trial,  conviction  or  punishment,  are  accesso- 
ry 
ries. 

It  will  be  observed  that  all  those  who  were  formerly  clas.sed 
as  principals  in  the  first  degree,  ])rincipald  in  the  second  de- 
gree, and  accessories  before  the  fact,  are  now  classed  as  princi- 


:m 


DRURY  V.  TERRITORY. 


305 


pals.     While  those  who  were  classed  as  accessories  after  the 
fact  are  now  (leiiomiiiate'l  "accessories." 

The  facts  charged  in  the  indictment  against  Drury  woxild 
have  constituted  him  a  principal  in  the  second  degree.  It  is 
alleged  that  Crandall  fired  the  homicidal  shot  with  a  premedi- 
tated design  to  effect  the  death  of  IMcCoy,  and  that  Drury  was 
jirescnt  aiding  and  ahetting  him,  in  the  design  and  act  lie 
was  then  a  principal  in  the  second  degree,  under  the  common- 
law  classification,  and  a  principal  under  our  statute.  While 
there  is  c<insiderable  matter  in  the  indictment  that  might  have 
lic'(Ti  priifitably  omitted,  there  is  nothing  that  in  any  way  tends 
to  projiidice  the  rights  of  the  accused.  It,  in  fact,  charges  him 
as  a  principal.  It  is  true  that  at  common  law  it  would  have 
liccn  principal  in  the  second  degree,  but  under  the  statute  it  is 
a  charge  against  him  as  a  i)rin('i])al.  It  was  probably  not  nec- 
cs-^ary  to  set  out  the  particular  acts  so  fully;  he  might  have  been 
cliaviicd  ill  the  same  language  as  Crandall;  but  the  pleader  saw 
lit  to  set  <iut  the  facts  specifically  as  to  each.  The  facts  pleaded 
Constitute  Drury  a  principal  to  the  murder  chai'ged,  and  he  is 
ill  no  jiosition  to  coni|dain  that  the  indictment  infonned  him 
of  the  ))articular  facts  the  Territory  relied  upon  for  a  convic- 
tion. There  was  no  error  in  overruling  the  demurrer  to  the  iu- 
dictinnit. 

The  case  of  Casey  v.  Shifr,  40  Keb.  403  (68  N.  W.  G43), 
citeil  by  counsel  for  plaintitV  in  error,  is  not  applicable  to  the 
([uestioii  here  under  consideration.  In  that  case  the  indictment 
s|)ecifically  charged  Casey  as  an  accessory  before  the  fact,  and 
the  |>roof  showed  he  was  present  at  the  connnission  of  the  crime; 
and  the  court  h.eld  that,  under  the  proof,  he  was  a  principal  in 
the  first  degree,  and  tliat  he  could  not  be  convicted  as  an  acces- 
sory. It  was  also  held  that  the  common-law  distinctions  still 
prevailed  in  that  State,  and  the  case  was  determined  in  harmony 
with  the  rule  at  common  law. 

In  the  case  of  State  r.  Hessian,  58  Iowa,  68  (12  N.  W.  77), 
it  was  held,  under  a  statute  identical  with  ours,  that  one  charged 
as  a  jirincipal  might  be  convicted  as  such  wdiere  the  proof  showed 
that  he  aided  and  abetted  the  crime.  We  have  no  doubt  as  to 
the  correctness  of  this  rule,  and  it  is  not  in  conflict  with  our 
conclusion  in  this  case. 

Ill  Baxter  v.  People,  3  Oilman,  368,  the  Supreme  Court  of 
Illinois  had  under  consideration  the  question  whether  proof 

Vol.   XIII— 20 


if!; 


i-l;:: 


:tv::. 


m. 


■u 


hi . 


11 


\  t 


V  V 


ti'i 


:14  1 
it] 


P,:?! 


?  I. 


u 


306 


AMERICAN  CRIMINAL  REPORTS. 


that  the  accused  was  present  aiding  and  abetting  would  sr.'^- 
tain  an  indictment  charging  him  as  a  principal.  The  statute 
of  that  State  is  very  simihir  to  ours.     The  (Jourt  said : 

"All  are  principals,  and  as  such  should  be  indicted  and  pun- 
ished. Indeed,  they  must  be  indicted  as  principals  or  not  at 
all ;  for  they  are  declared  by  the  act  to  Ix^  principals.  If  they 
arc  not  to  Ix?  indicted  as  principals,  the  very  o])ject  of  the  hxw 
is  defeated.  If  they  are  to  be  indicted  as  accessories,  they  must 
l)e  tried  and  convicted  as  accessories,  and  then  they  could  not 
be  tried  till  after  the  conviction  of  the  principals.  .  .  . 
There  is  no  doubt  that  the  pleader  may,  if  he  choose,  and  per- 
haps it  would  be  advisable  to  describe  the  circumstances  of  tlic 
oifeuse  as  they  actually  transpired,  as  it  is  in  an  indictment 
against  an  accessory  before  or  at  the  fact,  but,  if  the  stating  (*) 
part  of  the  indictment  be  that  way,  it  should  conchule  as  for 
murder,  for  that  is  really  the  offense  of  which  the  party  is  guilty, 
if  at  all." 

This  case  was  extensively  r?viewed  by  the  same  court  in  the 
later  case  of  Ussclfon  r.  rcople,  149  111.  012,  30  N.  E.  \):r2, 
and  the  doctrine  theretofore  announced  was  approved.  In  tin- 
latter  case  one  Terrell  was  charged  with  the  nuirder  of  one 
Sanders  and  Usseltou  and  several  others  were  charged  in  tlie 
same  indictment  with  being  accessories.  They  were  tried  and 
convicte<l  for  murder.     The  Court  said: 

*'Tt  a])pears  by  this  record  that  none  of  the  defendants  were 
accessories  at  common  law,  and,  if  guilty  at  all,  it  is  becaiise 
they  were  present  at  the  killing  by  Terrell,  and  aided  or  abetted 
him.  And  while  the  indictment  might  very  ])r()|)erly  have  al- 
iened that  the  mortal  blow  or  wound  was  inflicted  bv  Terrell, 
or  by  each  and  all  of  the  defendants  including  Terrell,  it  shoulil 
have  concluded  as  for  mnnh  r,  that  Ixing  the  (dfeuse  in  respect 
of  which  they  are  by  the  statute  to  be  deemed  principals.  If 
the  indictment  in  this  case  had  thus  concluded, — tiiat  is,  that 
these  defendants,  in  the  manner  aiid  by  the  means  set  ont  in 
the  indictment,  the  said  William  J.  Sanders  did  kill  and  ninr- 
(ler,  etc., — it  cannot  be  doubted  that  it  would  have  sutliciently 
charged  the  offense." 

These  cases  are  Ixjth  approved  in  the  yet  later  case  of  Firmer 
V.  People,  l.^-T  111.  1'2.3,  38  N.  E.  GG7.     We  quote  more  exten- 


•  This  word  is  "stating"  in  the  Pacific  Reporter;  but  is  starting  in 
the  Oklahoma  Reporter. 


DRURY  V.  TERRITORY. 


307 


sively  from  these  cases,  for  the  reason  that  the}'  are  cited  by 
counsel  for  plaintiff  in  eri-or  as  supporting  their  contention 
vli:it  the  iiulic'tnieiit  in  the  case  at  bar  charges  the  defendant 
duly  as  an  accessory. 

While  it  is  true  the  indictment  contains  the  averments  which 
:it  cdiumon  law  would  have  constituted  the  accused  an  accessory 
lit  the  fact  or  princi])le  in  the  second  degree,  the  concluding 
|iiirt  of  the  indictment  comes  scpiarely  Avithiu  the  rule  laid  down 
in  the  Illinois  cases,  and  charges  the  defendant  with  the  crime 
(if  murder  as  a  principal. 

Tlic  case  of  reopic  v.  Bliven,  112  :NL  Y.  91,  19  X.  E.  C8S, 
cited  Ity  plaintiif  in  error,  is  not  in  conflict  with  the  decision 
of  the  Illinois  courts.  In  that  case  it  was  held,  in  an  able  and 
Iciiglhy  opinion  by  Justice  Peckluun,  that,  under  the  ])vovisions 
dl'  the  Xew  York  Code,  one  who  was  charged  as  a  principal  in 
a  fVlouy  could  bo  convicted  of  the  crime  charged,  though  the 
|iniof  showed  that  he  was  absent  at  the  time  the  crime  was 
committed,  but  was  counseling  and  advising  the  commission  of 
the  acts  constituting  the  crime. 

On  examination  of  the  other  cases  cited  in  plaintiff  in  erroi''s 
brief,  we  find  no  case  that  holds  an  indictment  of  this  charac- 
ter insufficient  because  it  sets  out  the  particular  relations  of  the 
defendant  to  the  crime,  where  it  also  appears  that  he  is  charged 
as  a  principal.  This  the  indictment  in  the  case  under  consid- 
eration undoubtedly  does. 

It  is  next  contende«l  that  the  court  admitted  irrelevant  testi- 
mony, which  was  not  objected  to  by  the  defendant,  and  it  is  in- 
sisted that  the  court  should  reverse  the  case  for  this  reason.  We 
know  of  no  rule  that  requires,  or  even  authorizes,  such  ]tro- 
('(cdings.  It  appears  from  the  record  that  the  accused  was  de- 
f'(  nded  by  two  attorneys,  and  it  is  not  shown  that  they  were 
not  competent  to  manag(^  the  case,  and  fully  protect  the  interists 
•  f  their  client.  It  will  bo  presumed  that  if  the  defendant's 
counsel  permitted  the  Territory  to  introduce  irrelevant  and  im- 
material testimony  without  objections  on  their  part,  that  tluy 
considered  such  testimony  as  advantageous  to  their  client  and 
not  .prejudicial.  It  is  a  general  rule  that  an  appellate  court 
will  not  review  errors  of  the  trial  court,  unless  projier  objec- 
tions are  made  and  exceptions  saved.  There  may  be,  and  prob- 
ably are,  exceptions  to  this  rule,  but  the  matters  here  complained 
of  do  not  come  within  any  known  exceptions,  and  we  must 


km 


:;H 


m 


m 


I 


t  ,  i  i 


308 


AMERICAN  CRIMINAL  REPORTS. 


decline  to  consider  such  objections  coming  at  this  late  stage  of 
the  case. 

It  is  claimed  that  the  eoiu't  erred  in  permitting  the  witno.'--* 
Day  to  detail  a  conversation  had  with  the  defendant  in  regard 
to  the  purchase  of  a  hdg  from  the  deceased,  and  payment  to  him 
of  some  money.  The  only  •objection  made  to  this  testimony 
was  that  it  was  too  remote.  As  the  transaction  occurred  the  day 
previous  to  the  homicide,  we  think  the  court  connnitted  no 
error  in  overruling  this  objection.  There  was  no  objection  to 
the  relevancy  or  materiality  of  the  testimony. 

The  next  contention  is  that  the  court  erred  in  peraiitting  the 
witness  Lewis  ^liller  to  detail  conversation  liad  with  the  de- 
fendant in  refei'encc  to  the  killing  of  th(^  deceased,  over  the 
objection  of  the  defendant,  that  the  time  and  ])lace  were  not 
fixed.  There  was  no  error  in  tiiis  ruling.  The  details  of  time 
and  place  of  conversation  aro  only  reijuired  to  be  given  as  a  pre- 
requisite to  giving  the  conversation  when  it  is  being -introduced 
as  the  foundation  for  an  impeachment,  or  as  impeaching  evi- 
dence. The  conversation  here  offered  in  evidence  was  not  for 
the  purposes  of  impeachment,  but  for  the  ])urpose  of  proving 
admissions  of  the  defendant.  The  defendant  had  a  right,  on 
cross-examination,  to  go  fully  into  details  as  to  time,  place,  [)er- 
sons  present,  the  state  of  witness'  recollection,  his  relations  with, 
and  feelings  towards,  defendant,  for  the  i)urpose  of  testing  his 
recollection  and  aifecting  his  credit. 

The  correctness  of  some  of  the  instructions  given  by  the  court 
is  questioned  in  the  brief  of  counsel,  but  we  are  unable  to  find 
in  the  record  that  the  instructions  were  ever  objected  to  or  any 
exceptions  taken  to  them  in  the  trial  court.  Under  such  state 
of  the  record  we  must  decline  to  review  and  pass  upon  tliem. 

There  was  a  vast  amount  of  immaterial  ami  irrelevant  testi- 
mony permitted  to  go  to  the  jury,  some  of  it  objecte<l  to  and 
Some  not.  The  Territory  was  permitted  to  prove  that  the  de- 
fnxlant  had,  on  one  occasion  jirior  to  the  homici<le,  made  a 
threat  that  he  would  kill  one  Frank  Lula.  This  matter  had  not 
bten  made  material  or  competent  in  any  manner,  and  was  en- 
tirely independent  of  any  matter  connected  with  the  case  on 
trial.  Another  witness  for  the  Territory  was  permitted  t<i  tes- 
tify, over  the  objection  of  the  defendant,  that  the  defendant  hail 
made  a  statement  to  him  that  he  had  at  one  time  killed  three 
men  in  Colorado,  and  the  entire  circumstances  of  the  killing 


DRURY  i:  TERRITORY. 


309 


were  dctai'id  hy  tlio  Witney's.  This  matter  was  exceedingly 
])r('jn<li('ial  to  the  riiilits  of  the  ilelViuUint,  was  not  eonipcteiit  or 
iiijitcriiil  tor  any  jjurposc,  and  if  not  for  th(>  snbscqiient  aetion  of 
the  court,  wonhl  necessarily  liave  rcqnii'ed  a  reversal  of  this 
cMiise.  On  anollier  occasion,  durina;  the  trial,  the  ])r(iseeution 
jiiit  a  witness  on  the  stand,  and  sought  to  show  by  hiiu  t'"it  the 
(lif(  ndant  had  made  certain  confessions  to  th(>  Avitness  regarding 
llic  killing  of  .McCoy.  The  witness  denied  that  the  defendant 
I'ad  made  any  such  statements  to  him,  or  any  confessions  of  the 
kind.  The  witness  was  then  asked  by  counsel  for  the  prosecu- 
tion if  he  had  not  stated  to  the  county  attorney,  Ilubbell,  and 
assistant  counsel,  Strang,  that  he  would  testify  that  defendant 
had  made  such  confessions,  and  the  witness  denied  having  made 
such  statements.  The  court  then  permitted  attorneys  Ilubbell 
and  Strang  each  to  testify,  over  defendant's  objections,  not  only 
that  the  witness  had  nunle  statements  to  them  as  to  what  he 
wiiuld  swear  to,  but  they  were  permitted  to  detail  the  conversa- 
ti(pns  witli  the  witness,  and  testiiied  that  the  witness  said  to  them 
that  the  def(  ndant  had  said  to  witness  that  he  himself  shot  ^Ic- 
('(iv;  that  he  w(  nt  into  the  liouse,  and  saw  Crandall  and  ]\[cCoy 
in  an  altercation,  and  thought  ^IcCoy  was  getting  the  best  of 
Crandall,  and  that  ho  killed  McCoy;  and  that  he  had  iixed  up 
a  story  for  ^Irs.  Crandall  to  tell,  to  the  effect  that  McCoy  had 
rajied  her. 

We  know  of  no  rule  of  law  under  which  this  class  of  testi- 
niiiny  is  ever  competent.  When  the  prosecution  put  the  witness 
on  the  stand,  and  submitted  the  questions  to  him  as  to  defend- 
ant's confession:-,  they  did  so  at  their  own  peril  as  to  his  answers. 
It'  the  witness  was  hostile,  and  it  was  made  to  appear  to  the 
C(mrt  that  he  had  misled  and  deceived  the  counsel  for  the  Terri- 
tory, and  they  were  taken  by  surprise  by  reason  of  false  repre- 
sentations nnule  to  them,  and  testified  to  facts  prejudicial  to  the 
Tirritory,  the  rule  ])ermits  the  party  offering  the  witness  to 
ctmlradict  his  testimony  by  proving  a  different  state  of  facts  by 
eoni])etent  and  proper  evidence;  but  does  not  permit  proof  of 
facts  prejudicial  to  defendant  by  hearsay  and  incompetent  evi- 
d(  lice  of  the  character  introduced  in  this  instance. 

Trial  courts  cannot  be  too  careful  in  guarding  the  rights  and 
interests  of  those  on  trial  for  crime.  It  is  bettei*,  in  case  of 
doulit,  to  give  the  prisoner  the  benefit  of  the  doiibt,  and  the  court 
should  never  knowingly  permit  incompetent  and  prejudicial  evi- 


I ., 


'!     .  !  3 


I'iiir 


:  -A  . 


W- 


.Ji       V 


I    tv 


810 


AMERICAN  CRIMIXAL  REPORTS. 


(Itnce  to  go  to  the  jury,  which  it  is  clear  at  tho  time  will  hiivo 
to  be  withdrawn,  and  the  jury  instructed  to  disregard  it.  ('(  uru 
sdiiietinies  adn»it  evidence  uptin  a  theory  that  it  will  Iw  nuidc 
competent,  or  that  other  facts  will  he  shown  later  which  will 
render  such  evidence  competent.  If  such  theory  is  not  siis- 
tiiined,  ov  if  the  testimony  is  not  made  competent  by  prodf  of 
the  proper  foundation  facts,  then  the  court  is  compelled  to  with- 
draw the  evidence  from  the  jury,  and  direct  the  jury  to  disre- 
gard it.  Such  failure  on  the  part  of  the  party  otfering  such 
evidence  is  generally  apparent  to  the  jury,  and  more  frecpicntly 
r(snlts  to  the  detriment  of  the  jKirty  who  intnKlnced  the  tcsti- 
UKtnv  than  to  the  adverse  |)artv.  Hut  such  is  not  the  case  when 
incompetent  evidence  is  introduced  which  eoidd  in  no  event  be 
proper  for  the  jury  to  consider.  It  has  been  a  (piestion  seriously 
and  mnch  discussed  as  to  whether  such  errors  can  be  cured  ly 
a  withdrawal  of  such  cvidcMice  and  an  instruction  to  the  jury 
to  disregard  it.  In  this  case  the  court,  after  admitting  tia^  evi- 
dence referred  to,  very  pro])erly  and  correctly  withdrew  it  from 
the  jury,  and  sj)eeially  directed  the  attention  of  the  jury  to  it, 
and  instructed  them  to  disregard  it,  and  give  it  no  consideration 
or  weight. 

Did  this  action  of  the  court  cure  the  error  of  admitting  the 
testimony  i     Tiie  authorities  are  by  no  means  harmonious. 

It  is  a  generally  acee])te(l  doctrine  that  error  in  admitting  ille- 
gal evidence  may  Ix'  cured  by  iiistructions  directing  the  jury  to 
disregard  it;  but  whether  such  instructiim  does  in  fact  cure  the 
error  is  a  question  that  shonld  Ik?  determined  from  the  eharaet(  r 
of  the  illegal  evidence,  the  extent  of  it,  and  its  probable  etl'ect 
upon  the  jury. 

The  authorities  are  not  in  harmony  on  this  qnestitm.  In 
quite  a  large  num!)er  of  civil  cases,  and  in  a  few  criminal  eases, 
the  doctrine  has  been  announced  that,  where  incompetent  evi- 
dence is  admitted,  and  afterwards  withdrawn  by  the  court,  ami 
the  jury  instructed  to  disregard  such  evidence,  the  error  of  ad- 
mitting such  evidence  cannot  be  coniplaine<l  of;  that  the  courts 
will  assume  that  the  jury  obeyed  the  dinn'tions  of  the  court,  and 
were  not  influenced  by  the  illegal  evidence.  To  this  elTect  is 
the  case  of  Pennsylvania  Co.  v.Roij,  102  II.  S.  451  (20  L.  Ed. 
141) — a  civil  cause  in  which  Mr.  Justice  Ilarlan,  speaking  for 
the  conrt,  states  the  rule  in  broadest  terms. 

This  i^  the  extreme  view  on  one  side  of  the  question.     On  the 


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it, 

nil 


DRURY  r.  TERRITORY. 


311 


(iilu  r  luiud,  a  number  of  courts  hold  that,  when  illegal  or  incom- 
)i(  tent  cvidcnct'  of  a  prcjuclicial  character  has  gone  heforo  the 
jury,  the  injury  is  too  deeply  fixed  in  the  minds  of  the  jury  to 
[)o  enidicatcd,  and  the  error  cannot  he  cured  by  any  instruction 
ot'  llie  ('(lint.     This  is  the  other  extreme. 

According  to  a  nuiiilx  r  of  decisions,  the  error  is  not  cured 
unless  the  court  can  say  atlirniatively  that  the  evidence  worked 
no  injury  to  the  advers(;  party;  while  other  cases  say  there  must 
lie  reason  to  believe  that  the  evidence  improperly  influenced  the 
verdict;  while  in  the  case  of  Jones  r.  Raits,  5  Tex.  Civ.  App. 
(>i'S  (i'4  S.  W.  074),  it  was  ludd  that  it  must  aftirmatively  ap- 
pear tltat  the  improjier  evidence  did  affect  the  verdict. 

We  have  not  cited  the  cases  supporting  these  different  doc- 
iriiies,  but  they  will  be  found  in  11  Kr.e.  PI.  tfc  Prac.  JJOT-Jil  1, 
wliero  llie  subject  is  treated  and  all  the  authorities  cited. 

X(  illier  of  the  two  extreines  is  consistent  with  sound  reason 
and  good  j)ractico.  To  say  that  a  juror  is  never  ])rejn(liced, 
;iiid  liis  v(  rdict  never  ail'ected  by  illegal  or  incompetent  evi- 
dence which  the  court  has  permitted  to  be  introduced,  is  in 
(Miillict  with  human  experience  and  judicial  observation;  while 
to  say  that  the  jury  are  in  every  case  prejudiced  by  such  evi- 
(1(  lice,  even  though  directed  to  disregard  it,  is  to  place  entirely 
too  low  an  estimate  upfui  the  intelligence  of  jurors,  and  estab- 
lish a  rule  of  })ractice  which  makes  it  practically  impossible  for 
a  court  to  try  a  criminal  case  without  committing  reversible 
error. 

It  freciuentlv  occurs  in  the  trial  of  a  cause  that  a  witness  is 

1  c 

asked  a  jiroper  qiu'stion,  which  has  for  its  purpose  the  elicitation 
of  material  and  competent  testimony.  The  witness  may  give 
an  irresponsive  answer,  and  one  clearly  incomj)etent  and  preju- 
dicial. In  such  case,  the  court  should  promptly  strike  out  the 
answer,  direct  the  jury  to  disregard  it,  and,  if  necessary,  re- 
bidvc  the  witness.  Such  action  should  be  final  in  such  u  case, 
and  no  reviewing  court  would  think  of  reversing  a  case  on  such 
grounds. 

]>ut  in  cases  wliere  improper  prejudicial  evidence  has  Wen 
jiermitted  to  go  to  the  jury  upon  a  wrong  theory,  or  under  a 
mistake  of  the  court  as  to  the  law,  or  upon  the  contention  by 
the  prosecution  that  it  will  later  be  made  competent  by  ])roof 
of  other  facts,  which  are  not  proven,  and  the  evidence  thus  in- 
troduced is  of  a  character  to  prejudice  the  jurors  against  the 


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812 


AMERICAN'  CRIMINAL  REPORTS. 


ii 


dctVndant,  and  to  nmke  a  fixed  impression  on  the  mind,  mid 
it  is  nut  reasonably  probable  that  the  vcnliet  wonl-l  have  !]((  n 
the  same  had  this  illegal  evidence  not  been  introduecd,  we  think 
a  new  trial  !-.liould  be  granted. 

Without  n  ileeting  in  any  degree  n])on  the  intelligence,  integ- 
rity and  honesty  of  purpose  of  the  average  juror,  it  is  a  tact 
whieh  lias  long  been  apparent  to  eourts  and  lawyers,  that  mat- 
ters of  a  prejudieial  charaeter  within  the  knowleilgc  ol  a  jumr 
and  which  have  found  a  permanent  lodgment  in  his  mind,  will 
inadvi-rtently  and  uiiciiiisciously  enit  r  into  aTid  athct  his  ver- 
dict. The  juror  does  n<it  possess  that  trained  and  di-eiplined 
mind  which  enables  him  to  closely  disci'iminale  belwceu  thiit 
whii'h  he  is  permittid  to  consider  and  that  whieh  he  i>  nut,  niid 
is  fmm  his  inexperience  in  such  matters,  unable  to  draw  cim- 
chisions  entirely  uninlluenced  and  unatfected  by  ihe  incompe- 
tent matters  within  his  knowledge;  and  these  are  the  reasons 
that  a  person  having  some  knowledge  of  the  facts  in  a  case  is  m.t 
])ermitted  to  sit  as  a  j-nror. 

In  enunciating  rules  of  law  liased  ni)on  the  conduct'^'  and  ac- 
tions of  others,  courts  should  exercise  and  apply  that  same  de- 
gree of  human  judgimrit,  common  sense,  and  experience  in 
ordimiry  atfairs  that  they  direct  jurors  to  bring  to  their  aid  in 
deciding  questions  of  fact. 

The  correct  rule, — that  based  upt)n  sound  reason,  eommnu 
experience,  and  g(jod  judgment, — we  think  is,  if  thv  illegal  evi- 
dence was  of  such  a  character  as  would  or<linarily  create  siicli 
prejudice  against  the  defendant  as  was  reasonably  calculated  t  i 
make  a  fixid  impression  upon  the  minds  of  iIk;  jury  and  inllu- 
eiico  their  verdict,  and  the  court,  fron.  an  examination  of  the 
whole  case,  is  UTiable  to  say  tinit  such  evidence  did  not  probalily 
aiFect  the  verdict,  or  that  the  verdict  w  uild  not  probably  hav,' 
been  (litTerent,  in  any  event,  then  the  verilict  should  be  set  aside 
and  new  trial  ordered.  This  ruh^  h  iives  the  court  to  ex*  rcise 
some  jmlgmcnt  as  to  the  cliarncler  and  eil'cct  of  the  illegal  evi- 
d(  nee,  and  the  (piestion  is  not  left  t(v  be  determined  by  an 
arbitrary  rule  without  ivfcrenco  to  the  facts  or  conditions  sur- 
rounding the  ease.  This  nde  is  in  effect  supported  by  the  X(\v 
York,  Wisconsin  and  ^lichigan  cases,  thougii  somewhat  dif- 
fer; ntlv  stated. 


*Thc  word  is  "conduct"  in  Pac.  Re;).;  bit  is  "ccntract"  in  the  Olila- 
honia  Report. 


DRURY  V.  TERRITORY. 


313 


The  (Icfpiulaiit  was  cliarfjod  witli  the  criiiio  of  iminlcriii^  Mc- 
Coy, by  aiding  and  alu'ttiiig  Crandall  to  kill  tlio  dccca.sed  by 
shoot  iii|L,'  him  There  was  no  allcfiation  that  ho  did  the  overt  act 
vliii'h  n.sidtcd  in  ^IcCoy's  (hath,  but  it  wa-'  .s[)e('ili('Mlly  |)leaded 
1111(1  proved  on  the  trial  that  ("randall  siiot  and  killed  McCoy 
willi  a  revolver.  In  what  way  or  manner  did  Drury  aid  ami 
ji'icl  Crandall  in  iirin^'  ibis  hhot  <  This  is  left  larp'ly  to  in- 
ference. Tliei'c  is  bnt  little  evidence  tendin,i>'  to  implicate  him 
ill  the  killing'.  It  is  true  he  was  present  in  tiie  room  when  and 
v.liere  McCoy  was  killed,  'i'here  is  no  testimony  that  he  said 
(ir  di<l  anytlnng  at  the  time  to  aid  or  encouraj:>('  ('randall  in 
the  hdiiij-idal  act.  The  defendant  and  Crandall  each  lestitied 
that  liic  (h Cendant  nwide  an  eil'ort  to  separate  Crandall  and 
jlrCoy  while  they  were  enjiajiccl  in  the  stru^iile.  There  was  evi- 
dence that  the  deceased  had  Ihh'u  struck  on  the  hea<l  with  some 
iii.-lruniciit  which  ])roduccd  a  severe,  contused,  and  lacerate  il 
wniiiiil,  and  fractured  the  skull,  wlucli  wound  had  been  made 
hcl"<ire  the  shot  was  tired  which  produce(l  death.  Craiulall  testi- 
iit  d  that  he  '^truck  tliis  lilow  with  a  stick  (d"  stovewood,  and  the 
defendant  corroborated  this  statement,  'i'liey  botii  te.>tilied  that 
t'.iere  had  never  luu  n  any  talk  or  nnderstamling  Ix'twicn  tluni 
ahout  McCoy  in  any  way,  and  tlii're  was  no  proof  of  any  overt 
act,  on  the  part  of  Drury,  nid(ss  it  is  to  be  drawn  as  an  in- 
fercnco  from  his  rehitions  to  the  i)arties.  and  his  ])rescnce  in 
the  I'lim  at  the  time  of  tlic  bonucide.  There  was  coii.~iderablo 
!   -tiiiioiiy  to  the  etfect  that  ho  liad  been  very  attentive  lo  ^Irs. 

.iiidall,  and  his  friendly  and  intimate  |)ersonal  rcdations  to 
lier  were  of  such  a  character  that  it  mi<iht  be  reasonaldy  inferred 
that  they  were  criminally  intinuito.  lint  if  this  were  true,  was 
il  any  reason  why  he  should  want  McCoy  munh-red  i  Only  on 
the  the<jry  t'  it  be  was  jealous  of  McCoy;  yet  tlierc  was  no  testi- 
mony to  the  eil'ect  that  he  bad  any  knowledge  or  reason  to  be- 
lieve that  .Mc<'oy  bad  any  improper  relations  with,  or  iuten- 
tidiH  towards,  Mrs  (^randall.  We  presume  that  this  was  the 
theory  (d'  'i  prosecution,  and  furnished  the  motive  u])ou  which 
the  jury  based  their  verdict.  If  this  be  correct,  tin  n  wi'  have 
this  anomalous  condition  of  Crancbdl, — the  outrai>:ed  husband," 
takinji;'  the  life  of  ^IcCoy  Ix'cause  be  liad  ravished  bis  wife,  and 
l>nirv,  the  lover  of  the  ravished  woman,  aidin<>'  and  abetting 
in  the  nuirder  because  be  was  jealous  of  McCoy's  attention  to 


;'.)■ 


:ut 


AMERICAN  CRIMINAL  REPORTS. 


P 

M 
i 


I 


tlio  outrajjcd  woman,  yot  iKM'tlior  of  thorn  Imd  anv  knowlcd^o  of 
the  otlior'rt  motives  or  ]nir|K>soi'. 

Proof  <>f  Dniry's  coiwlm't  towards  Mrs.  (Vniulall  in!:_y  have 
l)C('n  competent  to  prove  a  motive,  hut  the  evi(h'nce  did  not  stoj) 
there.  Kvidence  was  introdueed  to  prove  improper  relations 
of  Drnrv  with  and  eoiKhict  towards  other  women,  at  other  times 
and  plaees,  entirely  in(h'|)en(h'nt  of,  and  in  no  way  eonne('te(| 
with  (he  issues  to  kt  tri(>d.  This  was  fnlldwed  hy  the  evi(h  iice 
to  the  ethct  tliat  Drury  had  mtuU)  a  threat  to  kill  one  I.ul;i,  ,i 
neii>'|il'<)r  of  his,  and  ennceal  his  coiinecliou  with  the  I'rinic  s:( 
(hat  no  one  would  discover  (he  author  of  the  i\^^'^\. 

riie  pros(  cuticii  was  next  perniilted  to  show  that  lh(>  det'cnd- 
and  iuid  mad(>  the  sta(enient  (hat  Ik^  had  killed  three  nun  in 
Colorado,  and  the  full  d(  tails  of  such  killin<j^  were  reheaised  to 
tlu^  jury,  and  were  of  such  a  character,  if  (rue,  (o  show  an  uiijns- 
(iliahle  and  rcclJcss  uiui'dcr  of  ea<'h  of  said  persons.  This  was 
further  fdl'owed  up  hy  perniittiufi;  (N)un(y  A(toruoy  Ilnlilxll 
and  .\ssoci;ite  Prosecutor  S(ran/j;  to  testily  that  a  prisoner  in 
ihe  County  jail  l:ad  nnide  (he  statement  to  (hem  that  Drury 
(old  (he  prisoner  that  ho  slio(  McCoy  hiinscli",  and  (hat  he  lixrd 
up  th(!  story  Tor  Mrs.  Crandall  to  (ell  (hat  McCoy  had  <uitr;i_i:('d 
her. 

All  of  this  (estiinouy  was  (dearly  incompetent,  hit>hly  preju- 
dicial, and  was  calculated  (o  intlaine  (he  minds  of  th(>  jury,  and 
to  impress  tli(  in  with  (he  idea  (hat  (he  defendant  was  a  despera(o 
and  <laui:(  runs  man,  and  likely  (o  commit  any  crime 

'Ihis  constant  crowding;'  in  hy  (he  proseeu(ion  of  sii  -h  damaii- 
iujH'  testimony  was  reasonahly  calculated  to  creattf  in  tin;  minds 
of  (he  jui-y  such  prejudice  aji'ainst  (he  deteudant,  and  produce, 
such  li.\<  d  and  lastinu,'  impressions,  as  would  necessarily  inllu- 
(  nee  (heir  ver<lic(. 

The  compett  nt  evidence  ajjainst  the  defendant  is  of  such  a 
weak  and  uncertain  churac(er,  and  (he  inconipetent  and  illepd 
evidence  (d'  such  a  dama^in/i;'  ami  prejudicial  character,  (ha(  the 
court  cannot  safely  say  (hat  (he  verdic(  would  havo  bei^n  (lu> 
name  had  (his  illcj.'!'!  evidence  not  been  permitted  to  ^o  (o  (he 
jury.  Stripp'  '  ot  all  its  sensational  and  inconipe(ent  eu\  in^n 
ments,  and  resting  8(d(dy  upon  the  competent  ami  material  (es(i 
niouy  in  (he  case,  (he  residt  mij^lit  havo  heen  nuiterially  dif- 
ferent. 

Jn  orih  r  to  ciiuvict  (he  defendant  of  tiie  crime  ehargtd,  i( 


DRURY  V.  TERRITORY. 


315 


\\'i\A  not  sufficlont  to  prove  tliat  ho  was  proscnt  at  the  comniis- 
fi'nni  of  the  orinio,  but,  in  the  hmguage  of  our  statute,  he  must 
'*iii<l  iind  al)et  in  its  eonunission." 

In  the  cas(»  of  Clem  v.  Stale,  X\  Ind.  418,  thi^trial  eourt  in- 
structed in  piirt  as  follows:  "So,  if  the  nuirder  was  ju'rpe- 
tnitcd  with  her  knowled^'e  and  consent  or  eonnivanee,  she  is  a 
|)riiH'i|>:il." 

Tlie  Siiprenio  Court  sai<l:  "  'Consent,'  as  n  sul>stantive,  is  a 
sviioiivii:  of  'ass(nt,'  SuHpiieseenee,'  *coneurrenee,'  and  means 
ill)  iiiirt'ciiieiit  or  harmony  of  opinion  or  senlinuMit,  and  so  it 
would  liere  Im-  popularly  un(hM*stoo«l.  Ir  does  not  ini|tly  any 
uiiini Testation  or  expression  of  such  eoneurrenee,  thouiili  this 
uiMV  SMint  tini(>s  1m'  inferred  from  the  eonneetion  in  wliieli  the 
word  is  usi'd.  There  was,  Iiowi'ver,  nnthiny  h(>r(>  to  snuiicst  this 
iin|iliciition.  It  e<(uld  exist  without  act  or  utterance  and 
(Mtircly  w'itliont  the  knowIe(li>(>  of  (he  actual  perpetra- 
(nr  (if  the  JKiMiicide,  and  in  that  case  it  would  neither 
;ii(l  imr  eucoura^X'  him  to  do  the  fatal  Ann],  nnd  short  of  this 
tlicrc  cannot  lie  aidiiifi;  or  alH'tliufj;  in  (he  j-ensc  whidi  the  law 
ri(piires  to  constitute  {•nilt  as  u  principal  in  (lie  sd-ond  dcyree. 
I'lidtrlliiri  instruction,  the  jury  wcudd  understiiud  (hat,  it'  they 
hclicvcd  from  (he  evidence  thai  the  pris«  ner  wns  present  when 
the  murder  was  committed,  and  was  willing  or  desirous  that  the 
hidody  deed  should  1h'  done,  they  must  find  her  guilty,  though 
thiit  desire  had  heen  kept  hy  her  a  siH'ret  and  was  entirely  nn- 
kiinwii  to  him  wh(»  inllicted  the  deadly  hlow.  It  is  plainly  not 
the  liiw  (hat  one  can  he  guilty  of  murder,  without  overt  act,  who 
l)v  Mcither  word  nor  gesture  has  done  anything  to  e(»ntril)ute  to 
the  commission  of  (he  homicide,  or  to  jissist,  encourage,  or  evine»> 
ajiprnval  (d"  it  at  or  hefor«'  the  fad,  and  of  whom  it  only  appears 
that  h(^  was  present,  and  knew  of  the  criine,  and  mentally  ap- 
proved it.  The  sih'Ut  thought,  however  wicked  in  view  of  the 
Searcher  of  Hearts,  is  not  a  criin«'  against  our  laws,  hut  is  left 
hy  tlieiu  (o  aiiodier  than  a  liinuau  trihunal.'' 

It  is  notsnllicient  to  sli<tw  that  the  defemlant  was  present,  and 
knew  the  otic  iis(>  was  heiiig  connnitted.  The  proof  must  go 
further,  and  show,  lK'yon<l  a  rcasotuihle  'louht,  tiint  he  was  par- 
tici|>ating  in  the  homicide  before  or  at  the  time  <tf  its  commis- 
sion.    (  Wade  r.  Slafe,  71   Ind.  r.-Sf).) 

Tli(>r(^  is  a  phiin  distinction  hetween  consenting  to  n  erinu'  and 
"aiding  and  abetting"  in  its  perpetration.     Aiding  and  aktting 


316 


AMERICAN  CRIMINAL  REPORTS. 


are  affirmative  in  tlicir  character;  consenting  may  be  a  mere 
negative  acquiescence,  not  in  anv  way  made  known  to  the  prin- 
cipal malefactor.  Such  consenting,  though  involving  moral 
turpitude,  does  not  come  up  to  the  meaning  of  the  words  of  tlie 
statute.      {White  v.  People,  81  111.  3;);3.) 

In  the  case  of  Jones  v.  People,  ICO  111.  204  (40  X.  E.  72.'}), 
the  Suju-eme  Court,  s])eaking  by  Mr.  Justice  Craig,  said : 

'''J'hero  is  no  controversy  from  any  quarter  in  regard  to  tlic 
fact  that  French  Jones  shot  and  killed  Goskie,  but  while  Lind- 
s(y  Jones  was  present,  there  is  no  evidence  in  the  record  that 
he  aided,  abetted,  or  assisted  French  Jones  in  any  manner,  in 
killing  (he  deceased.  In  order  to  justify  the  jury  in  convicting 
lilaintiit  in  error  under  the  indictment,  it  should  ajipeai",  frdiii 
the  evidence,  beyond  a  reasonable  doubt,  not  only  that  he  was 
present  when  French.  Jones  killed  the  deceased,  but  that  he 
aided,  abetted  or  assisted  in  the  homicide.  If  j)!aintitt"  in  ermr 
was  present  and  assented  to  the  homicide,  but  did  no  act  in  aid 
of  the  killing,  he  couhl  not  be  convictcnl  under  the  indictment." 

These  authorities  are  a))plicable  to  the  case  under  ciiusideva- 
tion,  exce])t  that  our  statute  uses  the  language,  "aid  and  ab(>t," 
while  the  Indiana  and  lUit  ni    statutes  read  "aid,  abet  or  assist."' 

In  view  of  the  charge  contained  in  the  indictment  in  tliis 
cause,  si)ecifically  charging  the  defendant  with  the  crime  of  mur- 
der by  being  accessory  to  the  fact,  or  princi])al  in  the  s<'c<>nd 
degree,  and  the  character  of  the  evidence  to  sustain  t'ns  ])articu- 
lar  averuK  nt,  we  are  not  sure  l>ut  the  jury  was  misled  and  im- 
properly intluenced  by  the  testimony  which  the  court  withdrew 
from  them  and  directed  them  to  disregard. 

For  the  reasons  stated,  the  judgment  of  the  District  Court  of 
Garfield  County  is  reversed,  ami  new  trial  ordered,  .'uitl.  if  the 
defendant  is  confined  in  the  ])eiiitentiary,  the  warden  is  directed 
to  deliver  him  to  the  sheriff  of  Garfi(!ld  (bounty,  to  be  by  him 
confined  in  the  County  jail  of  Garlield  County  until  discharged 
by  competent  autb.ority. 

Cause  reversed,  at  costs  of  the  county  of  Garfiehl. 

!McAtee,  J.,  having  presided  in  the  court  below,  not  sitting, 
all  of  the  other  ,1  ustices  concurring. 


Note  (By  J.  F.  G.).— It  was  held  in  State  v.  Oifford,  19  Wash.  461, 
53  Pae.  Rep.  709,  11  Amer.  Ciim.  Rep.  13;  State  v.  Morgan.  21  Wash. 
355,  58  Pac,  Rep.  215,  11  Amer.  Crira.  Rep.  17;  Oerter  v.  State,  57  Neb. 


DELEGAL  i\  STATE. 


317 


■in- 
ni! 
lie 


13.',,  77  N.  W.  Rep.  367,  11  Amer.  Crira.  Rep.  19,  that  under  similar 
f-tatutes,  one  wlio  became  principal  by  force  of  the  statute  should  not 
be  declared  against  as  doing  the  act,  but  the  acts  of  aiding  and 
abetting,  should  be  set  out  in  the  indictment. 


'•0. 


ihv 


Delegal  v.  State, 

109  Ga.  518—35  S.  E.  Ren.  105. 

Decided  January  25,  1900. 

HoMicinE  IX  Resistance  to  an  Attempt  to  Make  an  Arrest:  The  law 
pertaining  to  arrests  by  private  pcnons — Order  of  sheriff  to  a 
private  person — Opinionative  evidence — Instructions  foreign  to 
the  issue. 

1.  A   private  person   is  authorized   to  make  an  arrest  for  a  misde- 

meanor only  where  the  offense  is  committed  in  his  presence  or 
within  his  immediate  knowledge.  It  was  therefore  error,  on  the 
trial  of  a  person  charged  witli  the  homicide  of  one  who  had  at- 
tempted to  arrest  him,  where  the  evidence  clearly  showed  that 
the  deceased  and  another  attempted  to  arrest  the  accused  for 
a  misdemeanor  two  days  after  the  commission  of  the  offense, 
and  that  tlie  deceased  and  his  companion  were  private  persons, 
acting  without  a  warrant,  to  give  in  charge  to  the  jury  the  law 
authorizing  officers  to  make  arrests  without  warrants;  and  it 
was  especially  et-roneous  to  instruct  the  jury,  in  effect,  that  a 
private  person  might  arrest  where  "it  was  reasonably  proper  to 
do  so  in  order  to  prevent  a  failure  of  justice,  for  the  want  of  an 
officer  to  issue  a  warrant."  For  the  same  reason,  it  was  error 
to  charge:  "Whether,  under  all  the  circumstances,  including  the 
facilities  for  obtaining  a  warrant,  according  to  the  spirit  of  tho 
law,  there  was  or  was  not  cause  for  attempting  the  arrest,  is 
a  question,  after  all,  for  you  to  determine." 

2.  It  was  error,  in  such  a  trial,  to  allow  a  witness  to  give  his  opinion 

as  to  what  would  have  been  the  result  to  him  and  the  sheriff  if 
they  had  persisted,  two  days  before  the  homicide,  in  an  effort  to 
remove  a  prisoner  from  the  jail  to  the  railway  station  against 
the  will  of  a  mob,  of  which  the  accused  was  alleged  to  have  been 
a  member. 

3.  Where  there  was  no  evidence  of  any  mutual  combat  between  the 

deceased  and  the  accused  preceding  the  homicide,  it  was  error 
to  give  in  charge  to  the  jury  the  provisions  of  section  73  of  the 
Penal  Code, 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


t 


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I    i 


318 


AMERICAN  CRIMINAL  REPORTS. 


4.  Though,  In  the  statement  of  ^me  on  trial  for  murder,  he  may  have 
used  an  expression  which,  at  most,  was  merely  susceptible  of 
the  construction  that  he  had  consented  for  the  deceased  and 
another,  who  at  the  time  of  the  homicide  were  threatening,  with- 
out lawful  authority,  to  take  him  into  custody,  to  enter  his  house 
for  that  purpose,  yet,  where  it  affirmatively  and  positively  ap- 
peared from  the  evidence  that  neither  the  deceased  nor  the  other 
entered  the  house  in  consequence  of  any  such  alleged  consent,  it 
was  error  to  submit  to  the  jury  any  question  as  to  whether  or 
not  their  entering  the  house  was  upon  the  invitation,  tacit  or 
otherwise,  of  the  accused. 
(Syllabus  by  the  Court.) 

Eri'ov  from  Superior  Court,  Effingham  County;  Hon.  Paul 
E.  Sealbrook,  Judge. 

Jdlni  Delcgal,  convicted  of  homicide,  brirgs  error.     Keverstnl. 

Eohet't  J.  Travis,  Twiggs  tt  Oliver,  and  John  L.  Travis,  fur 
the  plaintiff. 

Livingston  Kenan,  Solicitor  General,  and  /.  M.  Terrell,  At- 
torney General,  for  the  State. 

Simmons,  C.  J.  The  record  discloses  that  on  August  l^^, 
185)1),  there  was  an  alleged  riot  in  the  town  of  Darien,  Ga.  On 
the  next  day  the  mayor  of  Darien  swore  in  Hopkins  and  'J'owii- 
send  for  the  purpose  of  making  the  arrest  of  one  of  the  rioters. 
They  subsefpienlly  saw  the  sheriff  of  the  county,  informed  liiiii 
what  the  mayor  had  done,  and  told  him  that  they  intended  to 
arrest  John  Dclcgal.  The  sheriff  told  them  to  "go  ahead." 
They  left  Dari(4i  some  time  on  the  afternoon  of  the  iJltli, 
stopped  for  the  night  at  Hopkins'  house,  and  at  2  o'cl<H'k  in 
the  morning  started  for  the  residence  of  Delegal,  which  was  IS 
miles  fi'om  Darien.  They  arrived  at  about  daylight,  aroused 
the  occupants  of  the  house,  announced  who  they  were,  and 
stated  that  they  had  come  to  arrest  Dclcgal,  He  inquired  as 
to  the  reason  for  his  arrest,  and  wa^  told  that  it.  was  because  <if' 
•  his  participation  in  the  riot  in  Darien.  \\v  asked  if  they  luul 
a  warrant.  They  replied  that  they  had  not,  but  that  they  liiid 
been  sent  by  the  sheriff.  Delegal  refused  to  be  arrested,  but 
proposed  that  he  be  allowed  to  take  the  train  to  Darien  at  11 
o'clock  on  that  daj',  and  surrender  himself  to  the  sheriff.  Tlioy 
declined  to  agree  to  this,  and  inf<n'med  him  that  they  intended 
to  carry  him  to  Darien  with  them;  assuring  him  at  the  same 


DELEGAL  v.  STATE. 


319 


have 

le  of 

and 

with- 

house 

y  ap- 

other 

3nt,  it 

er  or 

it  or 


1^^. 


time  that  they  "would  do  him  no  pei'sonal  in  jury.  Townsend 
told  him  they  intended  to  arrest  him,  and  would  not  "have  any 
long  talk"  about  it.  I )( legal  replie<l,  aceording  to  the  evidence 
for  the  State:  ''We  will  see  about  that."  In  hi?  statement 
iiinde  on  the  trial,  Delegal  said  that  he  finally  told  Ilopkius  and 
Town-scud:  "I  guess  I  will  go.  Let  me  get  my  pants," — and 
itlien  told  his  brother  to  unlatch  the  door,  that  he  might  "see 
wlmt  he  was  going  to  do."  His  offer  to  go  with  them,  if  the 
rciiiiivk  made  amotmts  to  that,  seems  not  to  have  Imni  heard  by 
Hopkins,  the  survivor.  As  the  door  was  unlatched,  Hopkins 
]iusli(  d  it  open  and  stepped  into  the  house,  with  the  remark,  "1 
iuii  not  afraid  of  y<ni."  At  this  time  Delegal  ajijiears  to  have 
l»e(  Ji  still  at  the  window,  through  which  he  had  bein  conversing 
with  Hopkins.  As  the  latter  entered  the  house,  Delegal  left 
tl;e  win(lt)W,  retreated  to  the  back  of  the  room,  and  seized  his 
gun.  As  Hopkins  entered  the  house,  Townsend,  the  deceased, 
ciiuie  up  the  steps,  and  upon  the  porch  or  ])iazza,  when  J)elegal 
sliot  and  killed  Townsend,  and  shot  at  llopkins,  wounding  him 
slightly.  Delegal,  in  his  statement,  said  that  when  he  reached 
the  corner  of  the  room  be  heard  some  one  say,  '"I  done  killed 
one  son  of  a  bitch,  and  I  don't  mind  killing  another."  He 
claims  that  he  then  saw  Townsend  throw  up  his  gun  as  if  to 
slinot,  wh(  reupon  he  shot  Townsend.  This  is,  in  substance,  the 
nuUtrial  ])art  of  the  testimony.  Under  this  evidence,  and  the 
charge  of  the  court,  the  jury  returned  a  verdict  of  guilty.  A 
motion  for  a  new  trial  was  made  and  overruled,  and  the  accused 
excejitid. 

1.  The  court  charged  tlie  jury  upon  the  law  which  authorizes 
officers  to  arrest  persons  for  misdemeanors  or  felonies,  with  or 
withotit  a  warrant.  This  was  excepted  to,  and  nnule  the  basis 
of  two  grfiimds  of  the  motion  for  new  trial.  The  evidence  clear- 
ly showed  that  neither  Ho])ki]is  nor  Townsend  was  an  v)lKcer  of 
the  State  or  county.  They  were  not  legally  appointed,  by  any 
person  authorized  to  make  arrests.  \Vc  have  no  knowledge  of 
any  law  which  atithorizes  the  mayor  of  Darien  to  appoint  deputy 
sheriffs  to  make  arrests,  or  to  administer  the  oath  of  oHice  to 
dejiuty  sheriffs.  Nor  do  we  know  of  any  law  which  authorizes 
the  sheriff,  after  an  oath  has  been  administered  by  such  nuiyor, 
to  send  the  persons  thus  sworn  in  to  make  arrests  fen*  a  uiis- 
demennor.  Under  all  the  evidence,  these  men  were  n<ithing 
more  than  private  individuals.     It  is  a  well-settled  principle  of 


'  Al 


•l1 


f  ■. 


■ 


y.u 


320 


AMERICAN  CRIMINAL  REPORTS. 


the  law  of  this  State,  ami,  as  far  as  we  are  advised,  of  all  otlior 
jurisdietiiiiis,  that  a  private  individual  eainiot  make  an  arrest 
for  a  inisdeiiuaiior  unless  the  otfenso  is  committed  in  his  pn  s- 
ence  or  within  his  immediate  knowledge.  Our  Peiuil  Code  (sec- 
tion 9(>())  declares  that  "a  private  person  may  arrest  an  ofl'eiidcr 
if  the  otFense  is  committed  in  his  presence  or  within  his  inmic- 
diate  knowledge;  and  if  the  offense  is  a  felony,  and  the  oll'endcr 
is  esca])infi',  (U*  attempting  to  escai)e,  a  ])rivate  person  may  arrest 
him  ui)iin  reasonable  and  prohah'e  grounds  of  suspicion."  'J'li" 
offense  for  which  the  accused  Avas  sought  to  he  arrested  was  a 
misdemeanor.  It  was  not  committed  in  the  presence  of  either 
IIo])kins  or  Townscnd ;  nor,  as  far  as  appears  from  (he  evidence, 
did  either  (»t"  them  have  any  innnediate  knowledge  of  the  oU'eiisc. 
Hopkins,  the  survivor,  was  doubtful,  according  to  his  own  testi- 
mony, as  to  whether  he  was  in  l)ari(  n  at  all  on  the  day  of  the 
alleged  riot,  bvt,  in  the  latter  ])art  of  hi?  testimony,  states  tliiit 
he  Ix'lieves  he  was  there  in  the  afternoon,  when  the  troops  ar- 
rived. At  that  time  it  appears  that  the  riot,,  if  there  had  bi'en 
one  at  all,  was  over.  We  thiid<,  therefore,  that  it  was  error  to 
give  in  charge  the  law  relative  to  tlie  authority  of  olHcers  to 
make  arrests.  There  is  a  difference  between  the  power  of  an 
ofticer  and  that  of  a  ])rivate  indiviilual  to  arrest  without  a  war- 
rant. An  oilicer  may  make  ai)  arrest  without  a  warrant  "if  the 
offense  is  committed  in  his  presence,  or  the  off'eiuler  is  endeavoi'- 
ing  to  escape,  or  for  other  cause  there  is  likely  to  he  a  failure 
of  justice  for  want  of  an  ofKcer  to  issue  a  warrant."  Id.  i?  MXi. 
It  was  especially  erroneous  to  give  in  charge  the  law  and  cir- 
cumstances under  which  oiiicers  are  authorized  to  nuike  arrests, 
when  the  court,  in  the  charge,  made  some  of  the  instances  of 
the  power  of  an  otticer  a])ply  to  private  individuals.  Thus,  in 
the  charge  coniplained  of  in  the  (Mghth  ground  of  \ho  motion 
for  new  trial,  the  judge  instructed  the  jury  that  Hopkins  and 
Townsend  had  no  legal  authority  to  make  arrests  without  a  war- 
rant ''unless  it  was  reasonably  pro])er  to  do  so  in  order  to  pi'c- 
vent  a  failure  of  justice  for  want  of  an  ofHcer  to  issue  a  war- 
rant." As  before  renuirked,  unless  the  offense  is  committed  in 
the  pres(!nce  of  a  private  indivithial,  or  within  his  immediate 
knowledge,  he  cannot  make  any  arrests  for  a  misdemeanor.  He 
has  no  ])ower  or  authority  to  do  so,  whether  he  has  time  to  sue 
ont  a  warrant  or  not.  Where  an  offense  is  committed  in  his 
presence,  he  must  arrest  the  offender  then  and  there;  and,  if  he 


DELEGAL  v.  STATE. 


321 


fails  to  do  so  immrdiatply,  his  power  to  do  so  at  all  is  gone.  TTe 
liiis  no  power  to  arrest  in  (jrder  to  prevent  a  failure  of  justice  for 
the  want  nf  an  olHcer  to  issue  a  warrant.  This  power  is  given 
to  piihlic  oflieers  only,  and  not  to  private  individuals.  An  otheer 
nuiy  arrest  when  the  otl'ense  is  eonnnitted  in  his  presence  or 
within  his  immediate  knttwledge,  or  if  there  is  likely  to  he  a 
fnihirc  (if  justice  for  the  want  of  a  })roper  officer  to  issue  a  war- 
rant. Tlie  eliarge  ahove  (pioted  instructed  the  jury  that  a  pri- 
vate individual  had,  under  such  circumstances,  the  same  power 
;\<  is  pussessed  hy  an  oHicer.  This,  we  think,  was  erroneous. 
'J'lie  eharyf^  complained  of  in  the  next  j;rouiul  of  the  motion 
f(ir  new  I  rial  was,  for  the  same  reason,  also  erroneous.  Jn  it 
the  jury  was  instructed  as  follows:  ''Whether,  under  all  the 
('ireuuivtaiiees,  including'  tiie  facilities  for  ohtaining  a  warrant, 
accnrdiiig  to  the  spirit  of  the  law,  there  was  or  was  not  cause  for 
att(iii])tiii,i:  the  arrest,  is  a  question,  after  all,  for  you  to  deter- 
mine." This  was,  in  etl'ect,  teilinii'  the  jury  that,  it'  there  were 
nil  facililies  for  obtaining  a  warrant,  a  jirivate  individual  had 
|i(iW(M'  Id  nnd<e  the  arnst  without  one.  This  charge  seems  m 
liave  been  taken  from  the  ojiininn  in  the  case  of  llioinas  v.  Sidle, 
•II  (Ja.  -'<•:,  IS  S.  K.  ;J(H),  where  Bkckley,  ('.  J.,  said,  ''Whether, 
under  all  the  circumstances,  including  the  facilities  for  obtain- 
ing a  wairant  according  to  tli(>  spirit  of  section  4723  of  the  Code, 
above  eited,  there  was  or  was  not  cause  for  attempting  the  arrest 
without  a.  warrant,  was  a  (pustion  for  the  jury."  It  will  kr 
H'vu  from  a  refereJice  to  that  case  that  the  learned  judge  was 
discussing  tlie  powers  and  duties  of  an  oiticer  under  that  section 
id'  the  Code  (now  section  MM!  of  the  Penal  Code),  and  not  the 
powers  of  a  private  individual;  so  the  charge,  although  ex- 
tracted from  one  of  the  deei>ions  of  this  court,  was  erroneous,  be- 
cause not  applicable  to  the  facts  of  the  present  case.  In  the 
I'hoinas  Cose  the  otHcer  had  been  informed  that  a  larceny  bad 
been  committed  in  the  forewoon,  and  he  undertook,  in  the  after- 
nnon  or  evening,  to  make  the  arrest,  and  was  re  sisted.  The  trial 
judge  stated  to  the  jury,  as  nuitter  of  law,  that  the  oflicer  had 
sullicient  probable  cause  to  attempt  to  make  the  arrest  without 
a  warrant;  and  this  court  held  that  this  was  error,  and  that 
the  matter  should  in  that  case  have  been  submitted  to  the  jury. 

2.  I'pon  the  trial  of  this  case  a  witness  was  allowed  to  testify, 
over  objection  of  counsel  for  the  accused:  "If  I  had  under- 
taken to  carry  Henry  Delegal  do^m  to  that  train,  the  result,  in 

Vol.    XIII— 21 


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322 


AMERICAN  CRIMINAL  REPORTS. 


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my  opinion,  would  have  been  that  Mr.  Blount  and  T  would  hotli 
have  been  killed."  This,  we  think,  was  error.  It  was  siniplv 
the  opinion  of  the  witness,  giving  what  he  thought  would  hiivc 
been  his  fate  and  that  of  the  sheriff  had  they  attempted  to  re- 
move the  prisoner  from  the  jail  to  the  railway  station  for  the 
purpose  of  taking  him  to  the  jail  of  another  county.  It  was 
clearly  irrelevant  and  inunaterial',  and  was  ealeulated  to  preju- 
dice the  minds  of  the  jurors  against  the  accuse  d.  In  this  con- 
nection, there  was  anotiier  excej)tion  to  a  ruling  of  the  judge  in 
admitting  evidence  as  to  the  du- racter  and  details  ol'  the  alleged 
riot  v/ith  which  such  evidence  directly  coniu'cted  tlie  accused. 
This  ground,  however,  does  not  set  out  the  evidence  to  wliicli 
objection  was  made;  referring,  instead,  to  certain  pages  of  the 
brief  of  evidence  where  the  objectionable  evidence  is  set  out. 
This  court  has  frequently  ruled  that  it  will  not  look  to  the 
brief  of  evidence  to  ascertain  what  was  the  evidence  objected  t<i. 
The  proper  way  of  making  such  a  ruling  the  basis  of  a  gruniid 
of  a  motion  for  new  trial  is  to  embrace  the  evidence  objected  {>> 
in  the  ground  of  the  motiitu  or  to  attach  it  as  an  exhibit  to  the 
motion.  While  we  think  it  was  pmbably  erroneous  to  adniir 
this  evidence,  we  cannot  deal  with  it  in  an  aulhorifative  way 
without  violating  our  former  rulings.  As  this  case  is  to  be 
tried  again,  I  will  say  for  myself  that  I  am  inclined  to  think 
the  true  rule  as  to  the  admissibility  of  such  evidence  to  hv  that 
where  the  arrest  is  nnide  by  a  private  individual,  when  the  <  t- 
fense  has  been  conunitted  in  bis  ])resence  or  within  his  inum  - 
diate  knowledge,  and  he  is  resisted  and  injured  by  the  ))arty 
he  seeks  to  arrest,  ho  may  give  in  evidence  the  fact  that  a:i 
offense  was  committ(  d  in  his  presence.  If,  however,  the  otl'i  use 
is  not  eonmiitted  in  his  presence,  and  he  subse(|uently  under- 
takes to  make  an  arrest  for  it,  he  cannot  justify  the  arrest  or 
attempted  arrest  by  proving  that  an  offense  was  conunitted. 
iS'or  can  he  justify  by  showing  that  aTi  offense  was  conunitted  in 
his  presence,  and  that  he  thou  waited  two  days  before;  attempt- 
ing t(»  make  the  arrest. 

3.  The  judge  charged  the  jury  section  73  of  the  P(>nal  Code, 
which  declares:  "If  a  ])erson  kill  another  in  his  <lefense,  it 
must  appear  that  the  danger  was  so  \irgent  and  pressing  at  the 
time  of  the  killing,  that,  in  order  to  save  his  own  life,  the  killing 
of  the  other  was  absoultely  necessary ;  and  it  must  a])i)ear,  also, 
that  the  person  killed  was  the  assailant,  or  that  the  slayer  had 


DELEGAL  i'.  STATE. 


323 


rciillv  and  in  good  faitli  ciulcavorcd  to  decline  any  further  strug- 
<;!('  liclore  the  mortal  blow  was  given."  The  record  discloses 
tli:il  I  here  was  no  nnitnal  eonihat  between  the  aeeusod  and  the 
(!i(i  iised  prior  to  the  killing.  Under  these  circunistanees,  this 
(•  iirt  has  t'reqnently  held  that  it  is  ilU^gal,  and  luirtfnl  to  the 
airii^cd,  to  give  this  seetioii,  in  eharge.  The  matter  has  been 
so  clciU'ly  discussed  and  setlhd  in  the  following  cases,  that  it  is 
iidl  lu'cessary  further  to  elaborate  the  (luestion:  Powell  v.  Hlate, 
lol  Cm.  !>,  ii:>  (2!)  S.  K.  ;](M))  ;  Tcdslci/  v.  Slate,  1()4-  Ga.  T-'iS 
(:!n  S.  K.  !i;;s);  J'arks  r.  .Stale,  {()'>  (ia.  212  (31  S.  E.  58(1); 
,s'///;///  r.  Slate,  IOC.  Ga.  07:5,  ('.SO  {:]2  S.  K.  851). 

I.  \  portion  of  the  defendant's  statement  was  as  follows: 
"TLr  third  time  he  [Hopkins  |  said  he  did  not  have  any  war- 
rant. I  said  T  w(.uld  not  go.  He  said:  ''J'hero  is  not  a  damned 
hit  ..I'  use  to  talk  that  way.'  I  said:  '1  will  come  on  the  11 
o'clock  train  t(Hday.'  lie  said:  *No  use  to  talk  that  way. 
Voii  got  to  go.'  I  said:  Vl  giu'ss  1  will  go.  Let  me  get  my 
pants.'     Before  I  stej)p(  d  hack,  1  said:     'Eddie,  take  the  night 


latch  otf.     I>et  nie  see  what  he  is  s>'oiu<r  to  ilo 


In  reward  to 


this  the  judge  charged  as  follows:  "If  .  .  .  ^Ics.srs.  Ifo])- 
kiiis  and  Townsend  were  engaged  in  executing  an  illegal  arrest 
■ — 1 1'  the  defendant,  after  having  demanded  of  them  whether  or 
not  they  had  a  warrant  f(.r  his  arrest,  and  receiving  a  repiv  in 
the  negative,  but  was  int'ormed  that  tiny  had  come  for  the  pur- 
pose <if  arresting  him,  and  they  assured  him  that  no  vicjlence 
woulil  be  done  him,  and  nnide  other  statements  to  him  of  a 
reas>uring  character,  and  notwithstanding  these  he  declinecl  to 
.'-uiiinit  to  arrest,  but  snbseiiuently  (if  you  iind  from  the  evi- 
dence such  to  be  the  case)  consented  to  go  with  these  alleged 
oiiicers.  and  in  ])ursuance  to  such  consent  they  entered  his  house, 
after  tli<'  latch  had  l)een  taken  off  by  some  one  within,  they 
wniill  be  authorized  in  believing  that  tluy  had  a  right  to  enter; 
and  if  no  demonstration  was  made  by  them  of  a  character  cal- 
(•ulai((l  to  excite  the  fears  of  a  reasonable  man  that  bodily  harm 
would  be  done  him,  and,  acting,  not  under  the  influence  of 
such  tears,  but  in  a  spirit  of  revenge,  defendant  tired  upon  these 
geutiemen,  which  resulted  in  the  death  of  the  deceased,  it  is  for 
you  to  determine  whether  such  shooting  was  or  was  not  murder, 
in  the  light  of  the  law  heretofore  given  you  in  charge.''  This 
charge  seems  to  have  been  based  upon  the  words,  "I  guess  I  will 
go,"  and  the  fact  that  the  door  was  milatched  by  some  one 


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324 


AMERICAN  CUIMINAL  REPORTS. 


Avitliiu  tlio  house.  It  could  not  have  been  liased  on  any  juirt 
of  the  evidence,  for  there  was  no  evicU-nee  tending  to  show  limt 
tlie  accused  ever  cons(nt<  <1  to  the  arrest,  or  to  the  entry  into  his 
lidusc.  We  are  very  doubtful  as  to  wliether  the;  words  uscii, 
even  when  taken  in  eninKction  witii  the  U!ihiteliini>'  of  the  door, 
were  suHicieiit  to  autiiorize  a  iinding  that  the  accused  conscntcil 
to  the  arrest  or  to  tlic  entry.  They  wi'ro  licarcely  inteinhd  as 
an  invitation,  for  the  next  sentence  after  instructiuij;  that  tlic 
(luiii-  bo  (i])eiied  was:  ''Let  nie  see  what  he  is  going, to  do.'' 
Taking  the  whole  of  the  statement  together,  these  words  are  at 
least  suscejitible  of  a  dilVercnt  construction  frrnu  that  placcil 
Ujion  them  by  this  charge;  but,  be  that  as  it  uiay,  we  are  ciciir 
that  it  was  (irroneous  to  allf)W  the  jury  to  liiid  that  the  entry 
was  made  in  pursuance  of  this  reipu'st,  Accoriling  to  the  tesli- 
nioiiy  of  Hopkins, — the  only  witness  testifying  on  the  trial  who 
was  present  at  the  time  of  the  homicide. — he  did  not  hear  fl:e 
words,  and  neither  he  nor  the  deceasid  acted  upon  them.  J  lop- 
kins  testified,  in  substance,  that  he  heard  the  latch  of  the  door 
raised,  and  he  immediately  j)ushed  the  door  oimii  and  entered 
the  house;  remarking,  as  he  did  so,  "I  am  not  afraid  of  you." 
Townsend  was  ch)sely  following  him  when  shot.  Il(»])kins  fnr- 
iher  testified  that  he  had,  in  his  testimony,  detailed  all  the  con- 
versation that  he  and  'J'ownsend  had  witii  the  accused,  and  all 
that  was  said  by  the  accused.  His  testimony  does  not  show  that 
these  words  were  used  by  the  accused.  Indi'od,  he  testified  that 
it  seemed  to  him  that  the  accused  was  refusing  to  go  when  the 
witness  enti'red  the  house.  Jt  was  therefore  impt)ssible,  accord- 
ing to  the  testimony  of  IJopkins,  that  he  could  have  acted  upon 
any  invitation  or  consent,  tacit  or  otherwise,  on  the  ])art  of 
Delegal.  If  Hopkins  and  Townsend  had  undei'stood  that  tlii' 
accused  was  ready  to  surrender,  and  willing  to  go  with  them, 
they  would  not  have  acted  in  the  belligerent  manner  which  they 
did;  nor  would  Hoi)kins  have  been  likely  to  use  the  expression, 
on  entering,  *'I  am  not  afraid  of  you."  The  evidence;  clearly 
showing  that  they  neither  heard  nor  acted  ujion  any  invitation 
or  expression  of  consent,  it  was  error  to  submit  to  the  jury  the 
question  as  to  wliether  tluy  had  done  so,  or  to  instruct  that  if 
Hopkins  and  Townsend  were  acting  upon  such  invitation  or  con- 
sent, and  the  accused  shot  and  killed  the  deceased,  it  was  mur- 
der. This  charge  was  harmful  jwhi  i)reju(licial  to  the  accused, 
because  it  is  the  only  theory  deducible  from  the  facts  .ajipear- 


STATE  i:  PHILLIPS. 


325 


ill,:;'  in  the  caso  which  woukl  havi-  authorized  the  jury  to  find 
iiiiii  guihy  of  murder.     Judgment  reversed.     All  the  justices 


(I  incurring. 


Static  v.  Piiim.ii's. 

119  Iowa  Cj2— 94  N.  W.  Rep.  229. 

Deeitleil  April  8,  1903. 

lioMKiDK  IN  Arkkst  I oi{  MisDKMKA Noii:  Ncccssary  force — Real  and 
aiiiiarent  danger — Instnictiuns — Evidence — Practice — Reconvcn- 
intj  of  Grand  Jury — Harmless  error. 

1.  Defendant  a  special  policeman  arrested  deceased  who  was  drunk 
and  disorderly,  and  who  continued  to  abuse  defendant  and  en- 
deavored to  get  away.  Defendant  struck  deceased  on  the  head 
with  a  billy  several  times,  which  resulted  In  death  next  morning. 
Deceased's  skull  was  unusually  thin.  There  were  bystanders 
near  who  might  have  been  called  upon  to  assist  in  taking  de- 
ceased into  custody. 
i;.  An  Instruction  that  defendant  should  be  convicted  if  he  used 
more  force  than  was  necessary  to  effectuate  his  arrest  held  er- 
roneous, since  defendant  was  held  only  to  judge,  as  a  prudent 
person,  of  what  was  reasonably  and  apparenthj  necessary;  and 
this  error  was  not  cured  by  a  subsequent  instruction  that  de- 
fendant should  be  acquitted  if  the  jury  found  that  it  was  reason- 
ably necessary  for  the  defendant  to  do  what  he  did. 

15.  It  was  held,  that  the  jury  should  have  been  fully  instructed  on  the 
circunistances  of  the  case,  and  that  ♦  *  *  "jt  -^.^^  foj-  the 
jury  to  ,^ay  from  the  evidence,  whether  under  the  circumstances 
disclosed,  tiie  defendant  was  justified  in  beating  the  prisoner  in 
his  inebriated  condition,  and,  if  so,  whether  more  force  was 
exerted  in  so  doing  than  was  permissible." 

4.  In  cases   involving  liberty,   the  court   will   on  rehearing,   for  the 

first  time,  consider  vital  points  not  intentionally  omitted  in  the 
regular  submission. 

5.  Tlie  court  may  reconvene  the  grand  jury  at  the  same  term. 

C.  Defendant  not  having  an  opportunity  to  challenge  the  grand  jurors 
is  not  a  statutory  ground  for  setting  aside  an  indictment. 

A|)peal  from  District  Court,  Wapello  County;  Hon.  Frank 
\V.  l"]ichelhcrg,  Judge. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


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Dcfcndnnt,  convicU'd  of  iiuiiislim,niit(  r,  iippciils.  There  wiis 
an  atHniiaiice  ()rij>iiiall.v,  which  see  M)  N.  W.  Kep.  l(>!)i';  but  oa 
riluiitriiig  thi've  was  a  reversal. 

/.  II.  Tomlluson  and  M.  A.  McCoid,  for  iho  appelhint. 

Charles  \V.  Miillan,  Attorney  General,  and  ('liarlcs  A.  ]'aii 
VIcch,  Assistant  Attorney  General,  for  the  State. 

I. Ann,  J.  The  aeensed  was  aetinj;  as  s|»oeial  polieenian  in 
the  town  of  Kld(»n  (hiring;'  the  perioil  iif  the  fair,  and  on  the  llli 
day  of  Septeniher,  l!)()(l,  had  cautioned  the  deceased,  Chii'ence 
J)ehard,  who  was  soniewliat  intt>xicated,  ajiainst  "kicking  up  a 
disturhance"  and  returninji;'  to  the  saloon.  Notwitiistandinn  this, 
the  deceased  inidortinik  to  return,  hnt  seems  to  have  stoppeil  on 
the  way  at  a  wienerwnrst  stiind,  and,  while  tiiere,  f^rahhed  for, 
hut  did  not  reach,  a  knife.  Thereupon  lie  was  ])ut  under  arrest 
hy  defendant,  and  taken  towartl  the  jail,  all  the  time  niakiiii; 
resistance  by  jerkinj;'  and  tryinjjj  to  f^vt  away,  and  also  \isiin;' 
profane  and  threatening  hingua_t';e.  This  continued  until  tluy 
reached  a  ])oint  in  front  of  a  print iiii;  ollice,  \vlier(>  the  defendant 
struck  the  deceased  over  the  iajad  with  a  club  or  "billy"  such  as 
is  usually  carriivl  by  pcvlicemen.  The  evi<lence  is  in  conllict  as 
to  whether  Debard  had  bncken  loose  at  the  time,  some  of  the 
•witnesses  testifying'  that  there  was  no  halt,  and  that  the  jjrisoner 
had  not  broken  away,  and  others  that  he  luul,  and  had  tni-ned 
upon  the  (h.'fendaut  with  his  list-s.  In  any  event,  he  foil  to  the 
ground  on  one  hip  and  his  hand,  and  thouiih  repeatedly  re- 
quested, refused  to  arise  and  go  with  the  ollicer.  As  the  de- 
fendant walked  anmnd  him,  Debard  turned,  attempting  to  guard 
liiniself  from  seizure,  and,  as  the  otlic^'r  reached  for  his  slnuilder, 
lie  kicked  at  him,  and  was  dealt  another  blow  on  lie  head.  The 
defendant  denied  striking  the  deceased  more  than  twice,  and  in 
this  is  somewhat  corroboratfMl ;  hnt  several  eyewitnesses  testiiieil 
that  he  beat  him  on  the  head  three  or  four  times,  and  thai,  wlu  ii 
last  hit,  deceased  tJirew  back  his  head,  and  fell  to  the  ground 
unconscious.  Jle  v.as  then  carricnl  to  the  jail  by  defendant  and 
others,  and  died  the  next  morning.  From  the  time  of  his  ar- 
rest until  the  last  blow,  the  deceased  was  violent  in  manner  and 
in  speech,  declaring  that  "there  was  not  enough  .  .  .  olH- 
cers  in  Eldon  to  take  hiin  to  jail";  that  ''the  oiHcers  could  beat 
Lis  head  off,  but  could  not  take  him" ;  that  ho  would  whip  dc- 


STATE  I'.  PHILLIPS 


fciulniit  if  lie  would  discnnl  tlio  "billv."     Some  of  tl 


327 


10  cviUcnci' 


wii-i  to  the  ('ll'(ct  timt  the  tii'.st  blow  was  very  severe,  and  that  the 
Jtiif  ended  all  eousciotis  resistanee.  rndotd)t(  tl'y,  the  conduct 
<<(  |)(  hart!  was  cxtrciiiely  (  xasperatiiiir,  iait  his  oidy  olTeii-^e  iirior 


tn  arrest  was  dniiikenhc  ss  and  (lis(ir( 


hid 


V  com 


luct. 


The  court,  in  the  sixth  jtaraiiraph  of  the  chari^o,  instructed 
the  jury  that':  ''Th(»  (hd'eiidnut  had  the  vi^ht  to  use  such  a 
dcurce  of  force  as  was  reasonahiy  uocessary  to  reduce  said 
i)(l)ard  to  suhiiH-'siou  ;  and  if  re-istauce,  if  any  there  ^-as,  was 
vin|(  nt  and  deleruHiied,  tl'c  di  fendant  was  uot  reijuireel  to  make 
nice  c!dcidati<»ii  MS  to  the  define  (d'  force  necessary  to  nccoui- 
|ih">h  the  purpose.  ]?ut,  to  (  xcum'  the  takitif^  of  life  in  umkiug 
tin  arrest  in  cases  of  uusdcnieanor,  it  uuist  l)C  shown  that  the 
killing;'  was  ue^-essary  to  cH'cct  the  (il)j(ct.  Hence,  if  you  tind 
friiiii  llie  evi(h  nee  in  this  case  heyoud  a  reasouahio  douht  iliat 
the  defendant,  whilst  unikinfj:  the  arrest  of  Dehard,  struck  him 
with  a  chd)  or  hillv,  and  that  Dehard  died  from  the  ellccts  of 


>uch  blow,  and  vou  further  tind  that  it  was  not  nece: 


irv 


to 


-trike  and  kill  Dehard,  il'  he  did,  in  (U'dc  r  to  effect  such  ;  rrest, 
yiiM  will  iiud  the  del'endant  guilty  of  manslaughter." 

The  i!;enera.l  statenu'ut  of  the  right  of  the  ofHcer  iinds  sup[)ort 
in  ninny  authorities.  See  Stale  v.  (Jnnrlt.  CO  X.  C.  141,  S-i 
Am.  D(v.  ;{:.!>:  Slate  r.  Picrhrrf/rr,  JHI  Mo.  OdO,  10  S.  W.  108, 
!i  Am.  St.  Uep.  .!S();  2  Hish.  \ew  Cr.  Law,  ^  050;  1  Jii^h.  Cr. 
I'rnc.  S  K'.l  ;  1  Whart.  Cr.  Law,  402  et  s(  q. ;  note  to  llavlxhis 
V.  Cdiii.  (Ky.)  01  Am.  !)( c.  lO.'J.  On  the  other  hand,  some 
authorities,  while  adiinttin,!>;  that  the  officer  is  never  rc(]uire<l  to 
retreat,  juid  may  nuet  force  with  force,  stem  to  hold  lh.it  in 
arresti.i'''  for  a  misdemeanor  only,  as  well  as  preventing;  the 
escajte  of  a  person  after  being  arrested  therefor,  life  may  iKit 
be  taken,  even  though  necessary  to  make  the  arrest  or  prevent 
the  escape,  save  when  the  oilicer  has  the  reasonable  apprehension 


of 


per 


il  to  1 


lis  own  life  or  i-reat  hodilv  harm.     1  MeCIaiii,  Cr. 


Law,  S  i'!>S ;  Thomas  v.  Ki>,l,ra<l,  55  Ark.  50^2,  18  S.  W.  S54,  15 


L.  IJ.  A.  55S,  20  Am.  St.  Hep.  08;  Bi 


roicn  V. 


Wca 


ver,  7 


0  M 


iss. 


7,  2;]  South.  :5SS,  42  L.  K.  A.  42.'],  71  Am.  St.  Rep.  512; 
ncncau  v.  Slate,  2  Lea,  720,  ai  Am.  Kep.  020;  U.  S.  v.  Clad- 
(C.  ('.)  ;31  Fed.  710;  2  Am.  &  Eng.  Ency.  Law,  84!),  and 
cases  cited.  Ihit  the  correctness  of  the  instruction  in  this 
respect  is  not  challenged,  for  it  was,  if  anything,  too  favorable 
to  the  defendant. 


il' 


n 


i" 


■'Lti 


; 


328 


AMERICAN  CRIMINAL  REPORTS. 


Appellant  docs  insist,  however,  that  it  is  defective  in  thnt 
(1 )  it  rc(]uircs  a  linding  of  absolute  necessity  in  order  U>  justily 
the  t liking  of  Uebard's  life,  and  {2)  that  it  cxcl'ides  all  ques- 
tions with  respect  to  the  result  being  accidental.  The  only 
ansv.'cr  to  the  tirst  of  these  is  the  caution  concerning  nice  dis- 
tinctidus  as  to  the  degree  of  the  force  ein))loyed.  But  this  is 
followed  by  the  unqimliticd  statement  that  the  killing,  to  he 
excusable,  muirt  have  b(en  necessary,  and  that,  lx>fore  llie  jury 
could  convict,  it  niu  t  be  found  to  have  been  unnecessary.  Cer- 
tainly, proof  of  abs(ilutc  necessity  was  not  required.  The  law 
exacted  no  more  from  defendant  than  that  in  what  he  did  he 
employed  no  more  force  in  etfeeting  tlie  arrest  than  to  him,  aet- 
ing  as  an  ordinarily  prudent  person,  would,  under  like  circuni- 
staiu'(  s,  seem  reasonably  ami  apparently  necessary  to  ellect  the 
arr(  st  of  eleceased.  Section  r>ll)4  of  the  Code'.  Tbc  State* 
ariincs  that,  even  if  this  instruction  is  not  suiKcie'iitly  ex- 
plauatory,  the  error  is  citreel  in  the  instructiem  following.  The 
erroi-  is  the  rather  enqihasizcd  in  that,  for,  while  exacting  a 
finding  that  the  killing  was  not  necessary  to  justify  a  convic- 
tion, tlie  ju'.y  are  told  to  acquit  if  "you  further  tind  that  it  was 
reas.inably  necessary,  taking  into  consideration  all  the  eireuni- 
staiic.es  in  evielence,  for  the  defendant  to  ;ise  such  club  or  billy, 
if  be  did  use  one',  in  the  nuinner  it  was  useil ;  and  fuvllicr  iind 
beyond  a  reasonable  doubt  that  the  defendant  ce)uld  not  have 
effe'cted  the  arrest  eif  said  De-barel,  ami  taken  him  to  jail,  with- 
out so  using  such  club  or  billy,  if  be  did  use  it."  Tbc  matte  r 
is  rel'crre'd  to  only  ineide'utally  in  the  other  instruction-,  and  not 
in  e-oniiection  with  the  evidence*. 

The  se'cemd  criticism  possibly  is  included  in  the  tirst.  The 
jury  might  have  found  that  defenelant  had  no  intention  of  kill- 
ing deceased.  The  jiost  mortem  de  ineinstrated  that  tli(>  latter 
had  an  exce'edina-lv  thin  skull,  and  there  was  evidence  tendiuii' 
to  sheiw  that  force  whie'h,  if  ap])lied  tei  the  ordinary  head,  would 
cause  no  serious  injury,  might  have  jirodue'cd  a  fracture  in 
Debard's  skull.  If  sei,  then  death  might  have  resulte'<l  from  a 
blow  of  the  "billy"  applied  with  no  greater  force'  than  might 
have  seemed  reasonably  necessary  te)  subject  decease'd  to  re- 
straint, and  the  jury  should  have  hcon  advise'd  that,  if  no  meav 
force  -was  exerted  than  permissible,  as  l'ereinl_)efore  stated,  and 
vet  death  resulted  because  of  the  charaeter  of  Debard's  skull, 
when,  had  it  been  of  ordinary  thickness,  this  would  not  have 


'■m 


STATE  V.  PHILLIPS. 


329 


(JUCS- 

(tiilv 


jun- 
Ccr- 


liappenod,  the  defendant  should  not  be  lieUl  responsible.  As 
ai'iiued  by  the  State,  there  is  much  evidenee  tendiiii;'  to  prove 
that  the  blows  were  severe,  and  unnecessarily  administered. 
The  deceased  was  intoxicated,  and  nnaruicd,  as  delVndant  knew. 
IJystaiiders  were  within  easy  call  during  the  entire  transaction, 
ami  presunuibly  wuuld  have  rendered  assistance,  accordiui;:  to 
their  duty,  had  this  been  required.  But  the  defendant  testified 
that  the  l)lows  were  not  administered  with  unusual  force,  and  it 
was  for  the  jury  to  say  from  the  evidence  whether,  under  the 
circuhistances  disclosed,  the  defendant  was  justified  in  beafiuf; 
the  i)risoner  in  his  inebriated  condition,  and,  if  so,  whether 
nil 're  force  was  exerted  in  so  (h)ing  than  was  permissible. 

•2.  1 1  is  true,  as  cnntended  by  the  State,  that  the  points  on 
which  I  he  judgment  is  reversed  were  made  for  the  first  time 
ill  the  petition  for  rehoarin.i^'.  In  civil  causes  this  alone  would 
jireveiit  n  consideration.  ]jut  the  law  is  more  intluliient  in 
action^  involving  the  liberty  of  the  citizen,  and  the  practice  has 
liiug  prevailed  in  this  court  of  granting  reliearings  for  th(>  ])ur- 
]):  se  of  correcting  errors  which  might  reasonably  be  ihougbt 
to  have  vitally  aifected  the  result  of  the  trial.  Of  course,  the 
poiiil  iiinst  not  have  been  intentionally  omitted.  If  the  accused 
lins  actually  overlooked  an  error  in  the  original  submission,  and 
it  was  sue'b  as  might  have  misle'd  the  jury  in  re^achiiig  their  ver- 
elict,  llie  ce)nrt  will  correct  it  on  rehearing.  IJut  for  ibis  ])ractice 
liaviini'  be^'u  adhered  te)  f(n*  nianv  ve'ars,  the  writer  would  be> 
inclined  to  mid<(>  no  distinction  Ix'tween  civil  and  criminal 
actions  in  this  resjiee't,  anel  to  treat  errors  which  ba\e  not  im- 
])re'sse,l  e'ounsed  .sulHe'iently  to  be  remendjcred  and  eliscu-seel  in 
till'  fir>t  instance'  as  having  been  waive'd. 

o.  Tlie  grand  jury,  having  complete'd  the  business  iIk'u  before 
it,  was,  em  the  r)th  day  e^f  Septend)er,  l!K)(),  by  the'  e'oiirt  ael- 
jonnied  "until  the>  second  elay  of  next  term,  unle'ss  sooner  calleel 
liy  the'  court";  ami  on  the'  folleiwing  elay,  it  a]i|)eariiig  "that 
since'  said  adjournment  important  cases  have  arise'ii,"  the  court 
ordered  saiel  graml  jury  to  re'turn  on  the  KHh  elay  of  said  month, 
during  the'  same  term,  Avhicli  it  did,  and  subse^eiuenlly  found 
the'  iinlietment  against  the  defendant.  He  move-el  the'  e'ourt  to 
set  aside'  the  indictment  on  the  grounels  ( 1)  that  the'  grand  jury 
was  not  se-Iected,  drawn,  sununoneel,  impaneled,  or  sweirn  as 
])'.'e'seribed  by  law;  and  (2)  that,  altheuigh  the  grand  jury,  after 
b'  iiig  discharged,  was  recalled  for  the  sole  purpose  of  investi- 


i 


U 


!S 


\l 


?;' 


ii' 


J' 


: 


I 


A  t 


■■•  i' 


'd 


i: 


Vi 


lit 


i    ■! 


1 

1 

1 

1 

330 


AMERICAN  CRIMINAL  REPORTS. 


gating  this  case,  defendant,  though  held  to  answer  and  in  cus- 
tody, was  nut  pennitted  to  appear  in  said  court  to  challeiinc 
said  jury.  This  motion  was  overruk'd.  It  will  be  o])ser\ed 
that  the  grand  jury  had  not  l)een,discharged  for  the  term,  hut 
excused  from  attendance  until  called  by  the  coiirt  to  retuiii. 
The  authority  of  the  court  to  do  this  is  not  questioned  in  argu- 
ment. Section  i'>'2^)2  of  the  Code  dinx'ts  tliat  "the  grand  jury, 
on  comi)leti()n  of  its  husiness,  shall  be  discharged."  This  evi- 
dently means  fur  the  t(  rm  of  court  at  which  it  is  imi)anele(1,  and 
does  not  limit  tlie  authority  of  the  court  to  excuse  the  jurors 
from  atten(hince  temporarily,  or  until  rcipiircd  again  at  t-ic 
same  term.  In  the  moiv'  ])<)pulous  counties  such  has  frccpu  utly 
l)(cn  the  practice,  and  it  is  not  open  to  just  criti(Msm.  The 
alkged  iri'CLiularity  in  adjourning  the  jury  and  recalling  it 
iipjH'r.i's  lo  he  the  only  objection  to  the  panel,  and,  regard'ess 
of  whetlicr  the  d(  I'c  ndant  was  in  a  situation  to  raise  the  ])oint, 
we  think  it  without  merit. 

'i'hat  (Iclcnihint  was  not  given  an  opportunity  to  challenge 
the  jumr-  is  nit  a  statutory  ground  for  setting  aside  an  indict- 
ment. Scctii  ii  .■");ilt»,  Code;  State  v.  JJangliman,  111  l((\va,  71, 
82  X.  W.  .Vli>. 

Otli(  r  (  I'nn's  ci  injilained  of  are  not  such  as  are  likely  to 
arise  ui)nn  aiKithcr  trial.  For  those  ])ointe<l  out,  the  judgment 
is  reversed,  and  the  cause  remanded  for  new  trial. 


DovKR  V.  State. 

109  Ga.  4 So— 34  S.  E.  Rep.  1030. 

Decided  .fanuary  24,  1900. 

Hoificinr — Arukst;  Unncccsnanj  IciUing  by  defendant,  a  vicmhcr  of 
an  officer's  posse,  while  making  an  arrest — Tests  in  such  case — 
Instructions — Selection  of  talesmen. 

1.  The  fact  that  some  of  the  jurors  constltntins  the  panel  for  the 
trial  of  a  felony  case  were  siinimoned  in  an  irregular  way  'a  no 
ground  for  a  new  trial,  when  such  irregularity  was  known  before 
trial,  and  no  objection  was  made  to  the  panel. 


For  rases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


DOVER  V.  STATE. 


331 


■  ■■f  Ij 


2.  Upon  the  trial  of  a  person  charged  with  the  offense  of  murder, 
where  tlic  defense  set  up  is  that  the  accused  was  a  member  of 
the  posse  of  an  arresting  officer,  and  that  when  he  killed  the 
deceased  he  was  acting  under  tlie  fears  of  a  reasonable  man  that 
his  life  was  in  danger,  a  charge  that  in  order  for  such  fears  to 
justify  the  killing  they  must  have  been  the  fears  "of  a  reasonably 
courageous  man. — not  the  fears  of  a  coward,  but  the  fears  of  a 
brave  man,  who  wants  to  do  his  duty,  and  is  trying  to  do  it," — 
vill  not  be  held  sufficient  cause  for  ordering  a  new  trial. 

o.  Whi'f'  in  such  a  trial,  there  was  evidence  from  which  the  jury 
iiiiglit  infer  that  the  arresting  officer  was  not  actuated  by  a  pur- 
pose to  discharge  his  duty,  but  had  in  mind  a  design  to  do  a 
wrong  to  the  deceased,  ns  well  as  evidence  warranting  the  in- 
ference that  the  members  of  the  posse  shared  in  the  officer's 
nlawful  Intention,  it  was  not  error  for  the  judge  to  instruct 
the  jury,  in  effect,  that  they  should  weigh  and  take  Into  consid- 
eration all  the  facts  and  chcumstances  tending  to  throw  light 
on  the  motives  and  conduct  of  the  officer,  and  that  if  the  officer 
had  an  unlawful  design,  and  his  associates  shared  in  it,  each 
would  be  accountable  for  the  motives  actuating  them  all,  as  a 
body. 

4.  Xor,  in  such  a  case,  was  it  error  for  the  Judge  to  charge  the  jury 
as  follows:  "If  you  believe  from  the  evidence  in  this  case  that 
the  arrest  could  have  been  made,  and  should  have  been  made, 
without  taking  the  life  of  the  party  to  have  been  arrested,  it 
ought  to  have  been  done,  and  it  was  a  crime  to  take  his  life." 

."i.  The  law,  as  embodied  in  sections  70  and  71  of  the  Penal  Code, 
and  the  law  requiring  that,  to  justify  the  killing,  the  danger  must 
be  urgent  and  pressing  at  the  time,  as  embodied  in  section  73 
of  the  Penal  Code,  may  both  be  appropriately  given  in  the  same 
case,  provided  they  are  not  confused  or  made  applicable  to  the 
same  theory  or  state  of  facts;  that  is,  there  may  be  in  th^ame 
case  one  theory  calling  for  instructions  on  the  first  subject,  and 
another  theory  calling  for,  and  making  proper,  instructions  on 
the  latter  subject.  In  the  present  case  it  does  not  appear  that 
the  judge  confused  these  different  branches  of  the  law  of  homi- 
cide, or  that  any  injury  was  done  to  the  accused  l)y  giving  in 
charge  the  law  contained  in  section  73  of  the  Penal  Code. 

fi.  The  charge  as  a  whole  was  a  correct  exposition  cf  the  law  of  the 
case.    The  evidence  amply  warranted  the  verdict,  and  there  was 
no  error  In  refusing  to  grant  a  new  trial. 
(Syllabus  by  the  Court.) 


\4 


^h:» 


♦  fi; 


li 


Error  to  Superior  Court,  na])crsham  County;  IldU.  J.  B. 
Estos,  Judge. 

Unci  Dover,  convicted  of  voluntary  man.«laugli1er,  brings 
error.     AtHnned. 


'■it 


m  1 1 


' 


332 


AMERICAN  CRIMINAL  REPORTS. 


Geo.  P.  Erivln  and  Howard  Thompson,  for  the  plaintiff  in 
error. 

W.  A.  Charters,  Solicitor  General,  for  the  State. 

ToiiB,  J.  Dover  was  placed  upon  trial,  charcjcd  with  the 
OiTensc  of  murder,  and  was  convicted  of  voluntary  niau- 
slauiilitcr.  He  made  a  motion  for  a  new  trial,  which  was  over- 
ruled, and  he  exce])ted. 

1.  When  tlie  sheriff  was  making  up  the  panel  from  which  the 
jury  to  try  this  case  was  to  l)e  selected,  the  judge  called  upon 
four  ])crsons  who  were  sitting  in  the  court  room,  and  askt'il  each 
the  following  questions:  "What  is  your  name  ^  Are  you  re- 
lated to  Mr.  Dover?"  '  He  then  said  to  the  sheriff,  "Why  don't 
you  put  his  name  down  as  tales  juror?"  The  sheriff'  did  take 
the  naiiKs  of  such  four  ])ersoiis,  and  placed  them  n\n  n  the  [)anel, 
and  two  of  them  w(  re  selected  as  jurors  to  try  the  case.  It 
seems  that  all  this  took  place  in  the  presence  of  the  aocusid  and 
his  counsel,  and  that  no  ohjection  was  made  at  tl^e  time  to  the 
]>roce((ling.  While  the  manner  of  selecting  these  jurors  wns 
irregular,  it  is  certainly  not  a  ground  for  granting  a  new  triid, 
when  no  ohjection  was  interposed  until  after  the  verdict  hail 
been  rendered. 

2.  ('omplaint  is  made  that  the  judge  erred  in  charging  the 
jury  iis  follows: 

"The  defendant  claims  in  this  case  that  the  cireunistances 
that  surrounded  him  at  the  time  of  the  shooting,  if  hv  did  shoot; 
and  ji  is  iulmittid  in  this  case  that  he  did  shoot —  lie  claims 
tliat  the  circimistancis  that  surrounded  him  at  that  time  were 
sutHcienr  to  excite  the  fears  of  a  reasonable  man.  I  charge  you, 
gentlemen  of  the  jury,  that  means  the  fear  of  a  reasoiud)ly 
courageous  man, — not  tlie  fear;^  of  a  coward,  but  the  tears  of 
a  brave  man,  who  wants  to  do  his  duty,  and  is  trying  to  do 
it." 

The  ei-ror  assigned  upon  the  charge  is  that  the  law  does  not 
reipiii'c  that  the  slayer  should  be  a  brave  man,  or  that  he  should 
be  actii:ite(l  by  the  fears  of  a  brave  man;  tlie  law  reijuiring 
only  that  the  killing  should  be  done  under  the  fears  of  a  rrason- 
ahlc  ma;:.  In  tlie  case  of  Teal  v.  S(a(e,  22  Ga.  TTt,  it  was  held 
that,  t(i  j'!  tify  tilt"  homicide,  the  f(>ars  of  the  slayer  should  l)e 
those  (  f  ;;  reasonable  man, — "one  reasonably  courageou-;,  reason- 
ably seir-[iosfesscd, — and  not  tliosc  of  a  coward."     lu    he  case 


DOVER  V.  STATE. 


333 


of  Price  V.  Slate,  72  Ga.  441,  this  court  approved  a  charge  on 
tlic  .-subject  of  reasonable  fears  which  stated  tliat  such  tears,  in 
order  to  relieve  the  slayer,  must  l)c  those  of  a  ''courageous 
luaii."  In  Gallcnj  v.  State,  !)2  Ga.  403  (17  S.  E.  8(;":}),  a 
charge,  en  the  subject  now  under  consideration,  that  the  law 
"means  the  fears  of  a  man  reasonably  courageous,"  was  held  not 
to  be  erroneous.  In  the  presc  ut  case  the  judge  charged  the  jury 
that  the  accused  at  the  time  of  the  killing  must  have  been  actu- 
ated liy  'Mhe  fears  of  a  reasonably  conrngeous  man,  not  the  fears 
of  a  cdward";  then  adding,  by  way  of  explanation  of  wliat  was 
a  reasonably  courageous  man,  ''the  fivars  of  a  brave  man,  who 
wants  to  do  his  duty,  and  is  trying  to  do  it."  We  will  not, 
hccnuse  of  this  charge,  reverse  the  judgment.  Wo  do  not  ap- 
pi'ove  (if  the  use  of  the  word  '"brave"  in  this  connection.  A 
jury  might  im<lersta,nd  it  to  imply  something  more  than  "rea- 
sniiably  cnurageous"  or  even  ''courageous."  This  opinion  must 
IK  it  be  regarded  as  a  precedent  sanctioning  the  em])loyment  of 
the  term  "hravc"  in  a  charge  on  I'easonable  fears.  We  simj)ly 
hold  til  at  in  this  particular  case,  as  the  accused  was  acting  as 
a  mendu'r  of  the  posse  of  an  arresting  officer,  the  charge  com- 
plainetl  of  is  not  cause  for  a  new  trial. 

8,  4.  The  charges  referred  to  in  the  third  and  fourth  head- 
notes  were  certainly  not  erroneous.  If  the  arresting  officer  and 
his  jKissi'  used  the  authority  which  the  law  gave  them  as  a  '  ^»ak 
to  avenge  the  private  grievance  of  one  of  the  nund)er,  and  all 
])articii)at(  (I  in  this  unlawful  purpose,  certain  it  is  that  the 
law  would  not  allow  a  homicide  conmiitterl  by  such  party  to  be 
justified  merelv  bv  the  fact  that  the  slaver  was  nominallv  at 
the  time  of  the  killing  a  mendjer  of  the  posse  of  the  arresting 
officer.  If  the  accused  killed  the  deceased  from  motives  of 
revenge,  the  fact  that  he  was  a  mend)er  of  the  posse  of  the 
arresting  othcer  M'ould  not  avail  him  as  a  defense.  It  is  cer- 
tainly sound  law  that,  if  an  arrest  can  be  accomplished  without 
taking  human  life,  it  is  murder  to  take  the  life. 

5.  In  the  case  of  Powell  i\  Stale,  101  Ga.  9  (29  S.  E.  :300), 
^Ir.  Justice  I^ittle,  in  the  opinion  on  page  2G,  in  referring  to 
sections  71  and  73  of  the  Penal  Vodv,  said:  "It  is  entirely 
proper  that  these  two  sections  of  the  Code  and  these  two  theories 
of  justitiable  homicide  should  have  bee  ti  given  in  charge  to  the 
jury  by  'lie  presiding  ju-Ige  in  this  case.  It  would  not  have 
Ik'cu  proper  for  him  to  have  assuuied,  imder  the  contentious 


m '^  I 


n 


I'm 


i 


ff 


334 


AMERICAN  CRIMINAL  REPORTS. 


raided,  tliiit  this  lioinicido  occurrctl  under  circiiinstancc^  wliicli 
Wdi.M  iiiiikc  it  justiliable  under  either  one  of  tlio  theories  ecm- 
tended  for,  that  was  a  (ine^tioii  exchisively  for  the  jnrv,  mikI 
h:ivini>'  been  charjtcd  with  tlie  law  applicable  to  justifialile  Iidiiii- 
( ide,   under  the  two  theories,   the  jury  could  and   would  have 


aui) 


li((l  tl 


i(^  sau'e  at 


cordini''  to  the  evidence  as  thev  h(  lieved  if 


1;;'."  It  thus  Ijciufjf  ch'ar  that  it  was  the  dnty  of  the  jndiie  lo 
cliariic  the  law  eudtraeed  in  hoth  sections,  and  it  ap[)earinu'  fvuii 
all  exaiiiiiMlinn  (if  the  record  that  the  char^'  ujiou  this  suhj( ci 
was  clear  and  explicit,  and  not  calculated  in  any  way  to  conl'iHe 
the  jury,  tlio  assi<>iinu'nts  of  error  upon  such  j)ortion  of  the 
cliarnc'iiiiist  lie  held  not  to  he  well  taken. 

(!.  Tlie  t"orei;(iiiii;'  deals  with  such  of  tlu!  assijjnuieuts  of  error 
as  re(piire  treatment  at  leiiiith.  Tlie  chai\i^e,  as  a  whole,  was  a 
correct  I'xposition  of  the  law  of  the  case,  and  iiolhing  in  llie 
.'•aiiu^  lias  l)(  en  hrouuht  to  <njr  attention   which  could   he  char- 


acterized as  an  error  recpiiring  tiie  ^rantinj>-  ot  a  new  trial. 

Tlie  evidence  not  only  fully  justilicil  llie  jury  in  lindiiu>-  lli 
accused  f>'uilty  of  voluntary  iiianshiii^ililer,  Imt  under  tli 


iK'torc!  IKS  a  ver( 


lict  f. 


ranted 


Th 


record 

or  niunler  would    not    \\i\vv   been    iiiiwar- 

•fi 


lere  was  no  error  in  reiusiii":  to  iirant  a  new  trial 


dudgnient  aHiruied.     All  the  justices  conciirri 


Hi 


XdTK  (By  J.  F.  G.). — Gfor;iia  statutes  mi  Homicitlc. — As  slieddin;; 
lii;lit  on  the  abovp  and  otlicr  Georgia  casci  in  tlicsf!  rejiorts,  wo  liere 
give  the  SecMons  of  the  f^enal  Code  of  Gi'orgiii  relating  lo  il-inii;idi'. 
There  is  apparent  conllii  t  in  several  instances  as  to  whether  diuiger 
tliat  jnstifles  seU"-defcnse,  niiisf.  \u\  real  or  ai)pai'ent.  Fee  italicised 
portions.  Those  recognizing  a!)imrent  danger  as  sufTicient,  of  course. 
])revail. 

The  Sections  on  Homicide  are  as  follows: 

HOMICIHE. 

See.  59  (4;{1!)).  Iloniicldo.  lloniicide  i.s  the  Idlling  of  a  hnman  ho- 
i  1^;,  and  is  of  three  Idnds — nnirder,  nianskuightcr.  and  iustiflahlc 
homicide. 

Sec.  00  ( t:520).  Murder.  Murder  is  ;he  niilawful  iiilling  of  a  luiiiiaii 
hoing,  in  the  peace  of  the  Stale,  l)y  a  p^'ison  of  sound  memory  ami 
discretion,  wiih  malice  aforethought,  cither  express  or  inipllcd. 

Sec.  Gl  (•i;521).  Express  malice.  Exi)ie.ss  malice  is  that  tlellherale 
intention  unlawfully  to  take  away  the  life  of  a  tellow-cicature,  wliii  h 
ia  manifested  by  external  circumstances  cainilde  of  proof. 

Sec.  G2  (4322).  Implied  malice.  Malice  shall  be  implied  where  no 
considerable  iirovocation  appears,  and  where  all  the  circumilaacos  of 
the  killing  show  an  abandoned  and  malignant  heart. 


DOVER  V.  STATE. 


335 


Spc.  03  (4323).  Murder,  imniahment  The  pniiiOimenl  for  persons 
rcnvicted  of  murder  shall  be  death,  but  may  bo  conflnement  in  tho 
penitentiary  for  life  In  the  follow)  jg  cases:  If  the  jury  trying  tho 
liiKO  shall  so  recommend,  or  if  the  conviction  is  foundoil  solely  on 
circumstantial  testimony,  the  presiding  judge  may  sentence  to  confino- 
r.ier.t  in  the  penitentiary  for  life.  In  the  fovmer  case  it  is  not  dis- 
cretionary with  the  judge;  in  the  latter  it  Is. 

Whenever  a  jury,  in  a  capital  case  of  homicide,  shall  find  a  verdict 
cf  guilty,  with  a  recommendation  of  mercy,  instead  of  a  recommenda- 
tion for  imprisonment  for  life,  in  casei  where,  by  law,  the  jury  may 
raal.e  such  recommendation,  such  verdict  shall  be  held  to  mean  im- 
pri-ionmcnt  for  life.  If,  in  any  capital  case  of  honiidde,  the  juiy  shall 
I'.ia!  0  any  recommendation  where  not  authorized  l.y  law  to  mal.o  a 
recommendation  of  inipri.sonment  for  life,  the  verdict  shall  be  con 
slrued  as  if  made  without  any  recommendation. 

Sec.  (!4  (la'24).  Manslaughter.  Mauslauv^hter  is  the  unlawful  killin;.; 
of  a  human  creature,  without  malice,  either  express  or  imiilied,  and 
without  any  mixture  of  deliberation  whatever,  which  nuiy  be  volun 
ti'.ry,  upon  a  sudden  heat  of  passion,  or  Involuntary,  in  tho  commis- 
sion cl'  an  unlawful  act,  or  u  lawful  act  without  due  (autiou  and  cir- 
cumspection. 

fcec.  Gj  (■{[',2'>).  Voluntary  manslaughter.  In  all  cases  of  voluntary 
manslaughter,  tlicrc  must  be  some  actual  assault  ui)on  the 
Iieison  killing,  cr  an  attempt  by  the  jierson  Idlled  to  com- 
mit a  serious  personal  injury  on  the  person  Killing,  or 
oilier  etpiivalcnt  circumstances  to  justify  the  e.Kcitoment  of 
jiassion,  and  to  exclude  all  idea  of  deliberation  or  malice,  either  ex- 
press or  implied.  Provocation  liy  words,  tlireats,  menaces  or  con- 
t(nii)tuous  ge.-tures,  shall  in  no  case  be  suffi;  lent  to  free  the  person 
hilling  from  the  guilt  and  crime  of  murder.  The  killing  must  be  the 
result  of  that  sudden,  violent  impulse  of  passion  suppo.sed  to  be  ir- 
resistible; for  If  there  should  have  been  an  interval  between  the 
ii:;sau!t  or  )i:ovoeaticn  given  and  the  homi'dde.  sufflt  ient  for  the  voice 
cf  reason  and  huniaJiity  to  be  heard,  the  killing  ::hull  be  .itiributed 
to  deliherale  levenge,  :in(l   l)e  punished  as  nuirdei'. 

Sec.  (id  (4;!L*i;).  Punishment.  Voliintnry  nuuislaugbter  shu'.l  be  jiun- 
ishcd  by  confinement  and  labor  in  the  penitentiai-y  for  I'.'i  less  than 
one  nor  longer  than  twonty  years. 

Sec.  G7  (i:i27).  Involuntary  inau>(aught('r.  Involuntary  manslaugh- 
It  r  shall  consist  In  the  killluH  ol  a  human  being  without  any  intention 
tr  do  so,  but  in  the  commission  of  an  unlawtu'  acl,  or  a  lawful  at. 
V  liich  probably  luight  |)roduce  such  a  conseq'ien(  e,  in  an  unlawful 
manner:  Provided,  that  where  such  involuntaiy  killing  shall  happen 
in  the  commission  of  an  unlawful  act  which,  in  its  consetiuences, 
naturally  tends  to  destroy  the  life  of  a  human  beiim.  or  is  eonunittoil 
in  the  prosecution  of  a  riotous  intent,  or  of  a  crime  punishable  by 
liealh  or  (onflnement  In  the  penitentiary,  ih'j  offense  shall  be  deemed 
und  adjudged  to  be  murder. 


;t 


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:\ 


t 


< 


1   .; 

i 

l'^ 

i 

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i  ■  1' 

U    " 

1? 


nil 


336 


AMERICAN  CRIMINAL  REPORTS. 


Sec.  C8  (1328).  Punishment.  Involuntary  manslauRliter,  In  the 
commission  of  an  unlawful  act,  shall  be  imnished  by  confinement  and 
labor  in  tlie  penitentiary  for  not  less  than  one  nor  longer  than  throe 
years. 

Sec.  G!)  (i:i29).  Punishment.  Involuntary  manslaughter,  in  the 
fomml.ssion  or  performance  of  a  lawful  act,  where  there  has  not  been 
observed  necessary  discretion  and  caution,  shall  be  punished  as  for 
a  misdemeanor. 

Sec.  70  (  !:;'!()).  Justifiable  homicide.  There  being  no  rational  dis- 
tinction belwoen  excusable  and  justifiable  homicide,  it  shall  no  lon^'cr 
exist.  .Tustiliable  homicide  is  the  killing  of  a  human  being  by  com- 
mandment of  the  law  in  execution  of  public  justice;  by  permission  of 
the  law  In  advancement  of  public  justice;  in  self-defense,  or  in  de- 
fense of  habitation,  property,  or  person,  against  one  who  manifcitUi 
intends  or  endeavors,  by  violence  or  surprise,  to  commit  a  felony  en 
either;  or  against  any  persons  who  manifestly  Intend  and  endoiivoi-. 
In  a  riotous  and  tumultuous  manner,  to  enter  the  ha1)itaticn  ol'  an- 
other tor  the  purpose  of  asoaulting  or  offering  personal  violence  to 
any  i)erson  dwelling  or  being  therein. 

Sec.  71  (i:'.:!]).  Fear  must  be  reasonable.  A  bare  fear  of  any  cf 
those  offenses,  to  prevent  which  the  homicide  is  alleged  to  have  hcen 
cenimlttcd,  sliall  not  be  sufllcient  to  justify  the  killing.  It  must  appear 
that  the  (ii(U)astancefi  were  saHicient  lo  crcitc  the  fears  of  a  reason- 
able man,  and  that  the  party  killing  really  acted  under  the  inllaeiuo 
of  those  fear.-:,  and  not  in  a  spirit  of  revenge. 

Sec.  72  (  i;'>;'.2).  Killing  in  defense.  If  after  persuasion,  remon- 
strance, or  other  gentle  measures  used,  a  forcil)le  attack  anil  Invasion 
or.  the  proi)eity  or  habitation  of  another  cannot  be  prevented,  it  shall 
be  justinable  homicide  to  kill  the  person  so  forcil)ly  attacking  ami 
invading  tiie  property  or  habitation  of  another;  but  it  must  appear 
that  such  killing  was  ahsoliitclu  necessary  to  prevent  such  attack  ami 
invasion,  and  that  a  serious  injury  was  intended,  or  might  accrue  to 
the  person,  property,  or  family  of  the  person  killing. 

Sec.  7:!  (I;'.;!;!).  The  danger  must  be  urgent.  If  a  person  kill  a:i- 
other  in  his  defense,  it  must  appear  that  the  damjer  was  so  tinjenl 
and  prcssinii  at  the  tinie  of  the  killing,  that,  in  order  to  save  7iis'  oirn 
life,  the  killinfj  of  the  other  was  absolutely  necessary;  and  it  must 
ap|)ear,  al.io,  that  tlie  person  killed  was  the  assailant,  or  that  the 
slayer  hail  leallj'  and  in  good  faith  endeavored  to  decline  any  furilier 
struggle  lel'ore  the  mortal  blew  was  given 

Sec.  71  I179G).  Mutual  protection.  Parents  and  children  may  mu- 
tually protect  each  ether,  and  justify  the  defense  of  the  person  or 
reputation  of  each  other. 

Sec.  1')  (4:!o4).  All  other  instances.  All  other  instances  whih 
stand  upon  the  same  footing  of  reason  and  justice  as  those  enumerate  I 
shall  be  justifiable  homicide. 

Sec.  70  (i;!llo).  Justifiable  homicide  not  punished.  The  homici(!e 
appearing  to  be  justifiable,  the  person  indicted  shall,  upon  the  trial, 
be  fully  acquitted  and  discharged. 


m 


OWENS  V.  STATE.  337 


Owens  v.  Statk. 

80  Miss.   <90— 32  So.  Rep.  152. 

Decided  June  9,  1902. 

Hdmicidk:  Two  convictions  for  killinf/  revenue  officers — Presumption 
of  innocence — ^^'llat  docs  not  amount  to  a  threat — When  an  in- 
Nirnction  may  he  aimed  at  a  j'-articnlnr  iintneas — Instruction  as 
to  falje  statement  hy  witness — Approvel  instruction — Testimony 
of  alleged  accomplice  willfully  false — Public  clamor  noi  to  affect 
Appellate  tribunals. 

1.  A  defendant  charged  with  crime  is  presumed  innocent  until  the 

contrary  is  shown;  a  conviction  must  rest  upon  the  affirmative 
evidence  of  guilt,  and  not  on  defendant's  failure  to  show  inno- 
cence. 

2.  It  is  not  admissible  on  the  trial  of  a  defendant  charged  with  the 

nuirder  of  a  revenue  officer  for  the  State  to  prove  a  statsment 
made  by  the  accused  more  than  a  year  before  the  homliile,  ))ut 
shortly  after  a  revenue  officer  was  reputed  to  have  been  fired 
upon  in  the  vicinity  where  the  homicide  occurred,  to  the  effect 
t'.K'.t,  "if  the  revenue  officers  don't  quit  bothering  out  there,  more 
of  them  will  be  shot.  I  don't  mean  that  1  will  do  it,  but  It  will 
be  done."  Such  a  statement  is  not  a  threat  cither  against  the 
dorcdcnt  or  a  class  of  persons  to  which  he  belonged,  or  anybody 
e'.so. 

:i,  Whore  a  conviction  dei)ends  solely  upon  the  testimony  of  an  ac- 
complice, who  is  a  confessed  perjurer,  it  i.-i  error  to  refuse  de- 
fendant an  instruction  to  the  effect  that  if  the  jury  believes  irom 
the  evidence  that  any  witness  had,  theretofore  or  on  the  trial, 
sworn  falsely  to  any  material  fact  in  the  case,  they  may  dis- 
regard his  testimony  altogether,  although  the  court  had  previous- 
ly charged  the  jury  that  they  were  the  sole  judges  of  the  credi- 
bility of  witnesses. 

1.  Siich  an  instruction  is  not  objectionable  because  aimed  at  a  par- 
ticular witness  (Norwood,  etc.,  v.  Andrews,  71  Miss.,  C41);  nor 
because  it  omitted  the  idea  of  the  false  swearing  being  inten- 
tional; since  it  was  impossible,  under  the  facts  of  the  case,  that 
the  false  testimony  was  mistakenly  given. 

5.  An  instruction  accurately  drawn  and  appropriate  to  the  facts  of 
the  case,  informing  the  jury  that  witnesses  can  be  impeached  by 
evidence  that  they  had  made  statements  and  testified  under  oath 
at  other  times  and  places  materially  in  conflict  with  their  tes- 
timony on  the  witness  stand,  and  that  the  jury  may  disregard  t.ie 
testimony  of  any  witne/s  so  impeached,  ought  to  be  given;  nor  ii 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 

Vol.   XIII— 22 


'!  ■  !' 


'■!  !• 


i'  I 


!■    i 


-    ifilf 


lU 

r 

i 

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t   h 

s  ■ 

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'yv  \  ' 

i 

i, 

'1 

\\  i  i    ' 

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ii 

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H 

338  AMERICAN  CRIMINAL  REPORTS. 

Btich  an  instruction  objectionable  because  It  concludes  with  t'lo 
statement  that  the  testimony  offered  to  impeach  a  witness  w;^ 
admitted  to  show  him  unworthy  of  belief  and  not  directly  lo 
establish  the  guilt  or  innocence  of  the  defendant, 
6.  A  mere  technical  error,  not  vital  in  its  nature,  is  not  cause  fur 
reversal  of  conviction;  but  where  the  defendant,  upon  his  trial 
has  been  denied  a  right  guaranteed  by  the  Constitution  and  laws 
of  the  State,  especially  where  the  conviction  rests  alone  uiio;i 
the  testimony  of  a  confessed  perjurer,  the  interest  of  society,  an 
well  as  the  rights  of  the  defendant,  demands  a  reversal. 

Appeal  from  Circuit  Court,  LaFayctte  County;  Hon.  Pcrriii 
II.  J.owry,  Judge. 

Wliitting'ton  Owens  -^vas  convicted  on  two  indictments  for 
muvdrr;  was  sentenced  to  impi'isnnnient  for  life  on  one  con- 
viction, and  to  be  hanged  on  the  otlior;  both  reversed. 

Whittington  Owens,  the  appellant,  was  indicted  in  the  Cir- 
cuit Court  of  LaFayette  County,  at  the  December  special  term, 
1901,  for  the  murder  of  Hugh  Montgomery.  The  iudictuicnt 
was  a  joint  one  against  Owens,  Orlandus  Lester,  Willimii 
Matthis  and  William  Jackson.  The  same  parties  were  al  -i 
indicted  by  the  same  grand  jury  for  the  murder  of  John  A. 
;\[ontu<)merv.  There  was  a  severance  in  each  case,  and  each 
of  the  defendants  were  separately  tried,  Owens  on  each  of  the 
indictments.  Orlandus  Lester  was  also  convicted  and  sentenecil 
to  death.  William  ^L\tthis  Avas  also  convicted  and  sentenced 
to  death.  William  Jackson  was  convicted  and  sentenced  to  the 
penitentiary  for  life.  Whittington  Owens,  the  appellant,  was 
convict(  d  upon  the  indictment  for  the  murder  of  John  A.  ^loiit- 
gonu  ry  and  sentenced  to  the  penitentiary  for  life.  lie  w;!s 
convicted  on  the  indictment  for  the  murder  of  Hugh  ^lonl- 
gomery  and  sentenced  to  death.  He  appealed  from  both  ecn- 
victions  to  the  supreme  court.  The  facts  in  reference  tn  tlie-i' 
murders,  as  disclosed  by  the  record,  are  these:  William  Matthis, 
one  of  the  indicted  parties,  had  been  charged  in  the  United 
States  court  for  the  Northern  District  of  ilississippi  with  tli;^ 
imlawful  distilling  of  whiskey,  commonly  called,  ''moonshiii- 
ing."  The  deceilents,  Hugh  ^Afontgomcry  and  John  A.  .Mont- 
gomery, were  deputy  United  States  marshals,  called,  in  the 
moonshine  districts,  "revenue  officers."  They  had  placed  in 
their  hands  on  the  day  they  were  murdeiTd  a  warrant  from 
the  United  States  Corct  for  the  arrest  of  William  ^lattlii^. 
They  left  Oxford  an!  proceeded  to  tlie  residence  of  Matthis, 


OWENS  r.  STATE. 


S39 


jin'ivinjr  there  quite  late-  in  the  nfternoon,  finding  Mntthis  at 
111 'inc.  cngiigod  in  some  domestic  business  somewhnt  ineon- 
viiiif  lit  for  him  In  iihandon.  He  prevailed  with  the  otiieers  to 
rciiiiiiii  over  night  with  him  at  his  country  home,  promising 
tliiit  lie  would  go  to  Oxford  with  them  the  next  morning,  and 
(  \(('nto  a  bond  for  his  a])j)earance  in  the  United  States  Court 
to  answer  the  charge  for  which  the  ofHcers  held  the  warrant. 
Otlamhis  Lester,  a  negro,  Avas  in  the  enii)lovment  of  William 
^Mallliis,  aiding  him  about  the  domesrie  ali'air,  the  suspension  of 
wl'icli,  for  the  accommodation  of  Matthis,  was  not  insisted  u])on 
liy  the  (ttHccrs.  On  the  trial  of  the  case,  it  appeared  that  after 
tlie  oilicers  had  n  tired  for  the  night,  ^latthis,  Jackson  and 
Lester  went  into  the  room,  where  they  found  them  aslei  [»  in 
l)((l.  and  killed  them  with  guns,  after  which  ^latthis  moved 
tl'eir  bodies  to  a  point  near  the  center  of  the  building  and  set 
lii'e  to  ihe  house,  burning  it  down  over  the  bodies  of  the  victims, 
l)('li(  \Iiig  that  thereby  he  could  destroy  all  evidences  of  guilt. 
It  was  shown  in  evidence  that  Owens,  the  api)ellant,  was  the 
falliei'-iii-law  of  ^latthis  and  resided  a  mile  and  a  half  or  two 
miles  distant  from  him.  The  only  aiHrmative  testimony  against 
the  apj)ellant  Avas  that  of  Orlandus  Lester,  one  of  the  convicted 
defendants,  who  testified  that  after  the  officers  had  consented  to 
remain  during  the  night  at  the  home  of  Matthis,  he  (  Lester) 
at  .Matthis'  request,  went  over  to  Owens'  residence  to  ask  Owens 
a>  directed  by  ^lattliis,  to  come  and  bring  his  gim  and  aid  in 
killing  the  revenue  officers.  Lester  testified  that  he  delivered 
this  message  to  Owens,  who  declined  to  go,  giving  as  a  reason 
tlien'i'or  that  if  he  left  home,  his  wife  would  raise  a  raek(>t  and 
(lisliiri)  the  neighborhood;  that  Owens  sent  his  gim  and  some 
hiiekshot  by  Lester,  together  with  a  message  to  Matthis  to  the 
e'l'eet  that  ^Matthis,  Jackson,  and  Lester  could  do  the  work  v,-ell 
and  must  not  allow  the  revenue  ofiicers  to  escape.  This  nas  the 
testimony  of  Lester  on  his  direct  testimony.  On  his  cross- 
examination  he  testified  that  all  he  had  said  on  his  direct  ox- 
aiiiiiialion  connecting  Owens  with  the  murders  was  untrue,  and 
that  he  had  so  testified  because  ^latthis  had  told  him  to  so 
sv.-ear,  and  be<MUse  he  believed  that  by  so  swearing  he  ceuld 
escape  the  gallows  himself.  On  re-examination  Lester  again 
asserted  the  truth  of  the  matters  of  fact  which  he  ha-l  affirmed 
on  his  direct  examination,  claiming  that  he  hp.d  sworn  falsely 
uii  his  cross-examination,     lie  further  admitted  that   he  had 


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340 


AMERICAN  CRIMINAL  REPORTS. 


sworn  falsely  in  the  trial  of  several  of  the  other  cases  growing 
out  of  the  murders,  and  that  he  had  on  divers  occasions  and  to 
divers  persons  made  false  statements  about  the  homicides.  The 
records  in  the  two  cases  against  Owens  are  practically  the  same, 
although  there  are  some  minor  differences,  which  are  mentioned 
in  the  opinion  of  the  Court.  The  opinion  was  delivered  in  the 
ease  in  which  appellant  was  sentenced  to  death,  but  it  was  con- 
trolling in  both  cases.  The  instructions  in  the  cases  are  sulli- 
ciently  stated  in  the  opinion. 

Slcpliens  <&  Stephens  and  McWiUie  &  Thompson,  for  the 
appellant. 

W.  L.  EsterJing,  Assistant  Attorney  General ;  W.  A.  Roane, 
District  Attorney,  and  11'.  A.  Montgomery,  for  the  State. 

Whitfield,  C.  J.  This  case  is  not  like  that  of  Matthis  or 
Lester.  In  those  cases  the  guilt  of  the  parties  was  shown  by 
overwhelming  evidence  of  the  most  positive  character.  This 
apjiellant  was  not  present  at  the  killing,  and  the  effort  here  is 
to  show  that  he  was  an  accessory  before  the  fact.  But  this  rests 
wholly  upon  the  testimony  of  Lester,  a  self-confessed  perjurer. 
It  was  earnestly  argued  that  Owens  did  not  take  the  stand,  and 
tl.at  no  member  of  the  family  took  the  stand,  to  contradict  Les- 
ter as  to  what  Lester  said  occurred  at  Owens'  house,  between 
him  and  Owens.  But  the  State  must  convict  on  affirmative 
testimony  showing  the  guilt,  not  on  the  failure  of  the  defenthuit 
to  show  his  innocence.  That  innocence  is  presumed  till  the 
State  has  shown  the  contrary.  The .  conversations  overheard 
between  Owens  and  othei's  in  the  jail  are  not  addressed  to  the 
point  of  showing  affirmatively  his  guilt.  They  are  not  affirma- 
tive evidence  of  participation  in  the  crime  as  accessory  before 
the  fact,  and  it  is  not,  of  course,  argued  that  they  involve  any 
confession.  Tliey  have  their  due  weight  as  evidence,  but  it  is 
perfectly  plain  that  this  conviction  must  rest  exclusively  on 
the  testimony  of  Lester. 

On  the  trial  of  this  case  the  witness  P.  E.  Mathews  was  per- 
mitted to  testify  to  an  alleged  threat.  What  he  says  on  that 
subject  is  as  follows:  *'Q.  State  to  the  jury  if  you  have  ever 
hard  him  make  a  statement  with  reference  to  the  killing  of 
revenue  officers  I  If  so,  state  to  the  jury  when  and  where  it 
was,  and  what  was  said?    A.  Yes,  sir;    I  heard  him  make  a 


OWENS  V.  STATE. 


341 


statement.  (Counsel  for  defendant  objected.  Objection  over- 
ruled. Exception  taken.)  Q.  Tell  the  jury  when  and  where  it 
was,  and  what  was  said  ?  A.  I  don't  remember  exactly  the 
date.  It  was  some  little  time  after  Dave  Rogers  was  shot  at 
out  here  south  of  town.  I  had  a  conversation  with  him.  By  the 
court:  About  how  long  ago?  A.  It  was  something  over  a 
year  ago.  My  recollection  is  it  was  in  the  summer  or  fall  of 
1000.  Q.  At  that  time  what  was  Dave  Rogers?  A.  Deputy 
United  States  marshal.  By  court:  State  tlie  words  that  was 
«;aid  by  Whit  Owens  ?  A.  I  had  a  conversation  with  Mr.  Owens 
hero  in  town,  near  the  federal  court  building.  His  statement 
to  mo  was,  if  the  revenue  officers  didn't  quit  bothering  out 
there,  there  would  be  some  more  of  them  shot.  (Counsel  for 
defendant  objected  as  incompetent,  too  remote,  etc.  Objection 
o\errulcd.  Exception  taken.)  Q.  Did  you  say  anything  to 
liini,  or  him  to  you  furtlier?  A.  Yes,  sir;  I  told  him  that  I 
thought  it  was  improper  to  make  that  kind  of  a  statement. 
(C^ounsel  for  defendant  objected.  Objection  sustained.)  By 
the  court:  I  don't  think  Mathews'  statement  to  Owens  is  ad- 
missible, and  it  is  excluded.  A.  His  answer  was,  *I  don't  mean 
that  I  will  do  it,  but  it  will  be  done.'  That's  about  his  language, 
as  well  as  I  remember  it.  (Counsel  for  defendant  objected,  and 
moved  to  exclude  all  this  testimony.  Objection  overruled.  Ex- 
ception taken.)"  The  court  should  have  permitted  what 
]^Iathews  said  to  Owens  to  go  in  evidence.  It  was  part  of  one 
continuous  conversation,  and  what  Mathews  said  to  Owens  is 
necessary  to  make  intelligible  Owens'  response,  "I  don't  mean 
that  I  will  do  it,  but  it  will  be  done."  It  is  not  possible  to 
sustain  the  admission  of  this  testimony  on  the  theory  that  it 
shows  a  threat.  It  is  perfectly  plain  that  Owens  did  not 
threaten  these  two  officers  individually;  and  counsel  for  the 
State  concede  that,  but  they  say  that  it  was  a  class — revenue 
officers  as  a  class — who  were  threatened.  Threatened  by  whom  ? 
Owens  did  not  threaten  to  do  anything  himself.  It  is  impos- 
sible to  take  his  language  and  work  out  of  it,  by  any  just  rea- 
soning, any  threat  that  ho  was  going  to  injure,  or  aid  in  in- 
juring, anybody.  On  the  contrary,  he  expressly  disclaimed  the 
l)urpose  of  shooting  any  one  himself.  "I  don't  mean  that  I  will 
do  it,  but  that  it  will  be  done."  We  think  it  perfectly  clear 
that  tl;e  language  used  contained  no  threat,  within  the  meaning 
of  the  lav/.    It  was  error  to  admit  this  testimony.    The  language 


M 


r 


- 


342 


AMERICAN  CRIMINAL  REPORTS. 


was  used  more  than  a  year  prior  to  this  trial.  There  is  nothing 
in  the  evidence  to  indicate  that,  at  the  time  this  alleged  threat 
was  made,  Owens  had  any  cause  himself  for  personal  animosity 
towards  the  revenue  officers.  The  most  that  can  be  said  was 
that  he  was  describing  a  state  of  feeling  that  existed  in  his 
community  towards  revenue  officers  as  a  class,  but  when  ho 
couples  with  this  statement  the  distinct  declaration,  "I  don't 
moan  that  I  will  do  it,"  it  must  be  perfectly  obvious  that  this 
falls  far  short  of  stating  any  threat  on  his  part  that  he  indi- 
vidually would  shoot,  or  aid  in  shooting,  any  revenue  officer. 
Within  none  of  the  principles  laid  down  in  the  law  books  as  to 
what  constitutes  a  threat  can  this  language  be  held  to  be  ii 
throat.  See  Hinson  v.  State,  66  Miss.  532,  6  South.  463.  It 
was  therefore  error  to  admit  this  testimony.  It  is  too  obvious 
for  discussion  that  this  testimony  was  prejudicial  in  the  high- 
est decree  to  the  defendant's  rights.  It  must  have  weighed 
mightily  with  the  jury.  The  same  testimony  was  admitted  in 
the  other  case  against  Owens.  In  one  of  these  cases,  singularly 
enough,  the  jury  found  the  defendant  guilty  of  murder,  with- 
out fixing  his  punishment  at  imprisonment  in  the  penitentiary 
for  life ;  and  in  the  other  the  jury,  whilst  finding  him  guilty  of 
murder,  merely  fixed  his  punishment  at  imprisonment  for  life. 
In  this  case,  in  which  the  prisoner  was  sentenced  to  death,  the 
court  refused  to  charge  the  jury  for  defendant  as  follows :  ''The 
court  instructs  the  jury  that  if  they  believe  from  the  evidence 
that  any  witness  has  heretofore,  or  on  this  trial,  sworn  falsely 
to  any  material  fact  in  this  case,  they  may  disregard  tlie  tes- 
timony of  such  witness  altogether."  In  the  other  case  the  court 
refused  an  identical  instruction  to  the  defendant  in  the  follow- 
ing words:  ''The  court  instructs  the  jury  that  if  they  Ix'lieve 
from  the  evidence  that  any  witness  has  heretofore,  or  on  this 
trial,  sworn  falsely  to  any  material  fact  in  this  case,  they'may 
disregard  the  testimony  of  such  witness  altogether."  Both  these 
instructions  should  have  been  given  in  the  respective  trials. 
The  fact  that  the  court  had  charged  the  jury,  in  an  instruction 
telling  thorn  that  they  were  authorized  to  convict  on.  the  tes- 
timony of  the  accomplice  alone,  and  that  they  were  the  sole 
judges  of  the  credibility  of  the  witnesses,  does  not  cure  this 
error,  on  the  peculiar  facts  of  this  case;  for  here  the  whole 
case  for  the  State  depended  absolutely  upon  the  testimony  of 
this  one  witness,  Lester.     Without  his  testimony  it  was,  of 


fi. 


OWENS  V.  STATE. 


343 


coiirsp,  impossible  to  convict  defendant.  lie,  and  he  only,  tes- 
tifies to  the  substantive  facts  aifirmatively  showing  the  defendant 
to  have  been  an  accessory  before  the  fact  in  this  horrible  as- 
sassination. The  whole  purjiose  of  the  testimony  was  to  con- 
nect Owens  with  the  killing,  and  this  connection  is  shown  alono 
by  the  testimony  of  this  witness  Lester,  and  this  witness  is  a 
sclf-ciinfcssetl  perjurer.  There  is  scarcely  a  material  fact  in 
Ills  testimony  about  which  he  does  not  confess  that  ho  dolibcr- 
i'lcly  perjured  himself  at  different  times.  Kay,  more  than  this, 
lie  actually  confesses  to  deliberate  perjury  during  the  same 
'  xaiiiiiiation  in  this  case,  contradicting  under  oath  on  the  cross- 
examination  the  most  solemn  statements  of  fact  fresh  from  his 
lips  (in  the  examination  in  chief.  Could  there  be  conceived  a 
ciise  in  which  it  was  me>re  vital  to  a  fair  anel  impartial  trial 
that  these  two  instructions  should  have  been  given  ^  They  go 
tii  the'  very  soul  of  the  defense,  to-wit,  that  the  State  witness 
was  wholly  unworthy  of  credit.  It  was  not  sufficient,  therefore, 
1m  have  stated  ."neielentally  that  the  jury  were  the  sole  judges  of 
the  credibility  of  the  witnesses,  in  the  charge,  not  pointing 
specifically  on  that  pi'eipe>siti()n,  but  on  the  totally  distinct  ])r(i])o- 
.^ition  tliat  the  jury  might  convict  on  the  unsupported  testimony 
if  an  accomplice.  The  principle  of  Green  v.  State,  55  ^liss. 
454,  controls  lure,  wherein  it  was  held  evror  to  refuse  an.  in- 
struction for  de'fendant  that  the  testimony  of  an  ace'oiiiplieo 
should  be  received  with  great  caution,  and  that  the  jury  might 
disl)elieve  such  testimony  altogether,  although  the  jury  had 
already  been  charged  that  they  were  the  sole  judges  of  the 
evidence,  and  might  disregard  the  testimony  of  such  witnesses 
as  they  did  not  believe.  The  charge  in  Finlcy  v.  Hunt,  50  ]\Iiss. 
±l'fi,  told  the  jury  the  witness  "was  not  entitled  to  credit"  as  t,) 
any  other  matter  as  to  wiiicl)  he  bsul  te'stified,  if  he  had  testified 
falsely  as  ^to  any  nmterial  matter,  and  was  properly  refused, 
because  it  connnanded  the  jury  to  wholly  disbelieve  the  witness 
in  such  case.  It  is  not  objectionable  em  the  ground  that  it  was 
aimed  at  the  witness  Lester.  This  case  is  not  like  that  of  llail- 
u-ay  (Jo.  V.  Tate,  70  Miss.  348,  12  Se>uth.  333,  in  that  resjjcct. 
The  testimony  of  the  only  witness  for  the  defendant  there  was 
not  only  not  contradicted,  but  was  neither  improbable  nor  iin- 
reasonablo.  Here  the  testimony  of  this  witness  is  self -cont riff! ic- 
tory.  He  himself  admits  that  he  has  eleliberately  pei'jured  him- 
self in  his  statement  a3  given  in  the  examination  in  chief  and 


■i'm 


■^    1 


I 


844 


AMERICAN  CRIMINAL  REPORTS. 


cross-examination  on  this  very  same  trial.  In  such  a  case  it  is 
no  objection  that  the  instruction  is  aimed  at  testimony  con- 
fessedly perjured.  See  Norwood  tC  Bultcrficld  Co.  v.  Andrews, 
71  -Miss.  641,  IG  South.  2G2.  It  may  be  said  that  the  instruc- 
tion omits  the  word  "intentionally,"  and  that  under  Railroad 
Co.  V.  lledricJc,  02  Miss.  21),  it  was  properly  refused  for  that 
reason;  but  that  case  and  similar  cases  refer  alone  to  those 
instances  in  which  it  is  possible  that  the  false  testimony  may 
have  been  simply  mistaken  testimony,  in  which  the  witness  may 
have  stated  a  fact  falsely  (stated  it  as  it  was  not),  and  yet  done 
so  unintentionally  (testified  falsely,  in  oilier  words,  by  pure 
misiake).  But  it  would  be  preposterous  to  claim  that  this  wit- 
ness testified  falsely,  in  the  many  instances  in  which  he  admits 
that  he  testified  falsely,  simply  by  mistake,  lie  leaves  no  romn 
for  the  application  of  the  principles  announced  in  the  cases 
cited.  He  confessed,  callously  and  shamelessly,  that  he  had 
not  only  perjured  himself,  but  had  done  so  in  such  a  way  that 
it  is  impossible  not  to  see,  clearly  and  ])]ainly,  that  he  had  in- 
tentionally and  delilx'rately  perjured  himself  as  to  most  material 
facts.  Where,  therefore,  the  facts  show  tliat  the  witness  had  in- 
tentionally perjured  himself  alK)Ut  material  matters,  it  is  wholly 
immaterial  that  the  word  "intentional"  was  omitted  fmm  the 
charge.  The  only  object  of  putting  the  word  "intentionally" 
in  such  a  charge  is  to  warn  the  jury  that  they  should  not  wholly 
reject  the  testimony  of  a  witness  '  '•ause  he  had  testified  falsely 
merely,  if  he  had  so  falsely  testifieu  unintentionally  (that  is  to 
say,  by  mistake)  ;  but  where  the  jury  see  (they  themselves), 
with  overwhelming  clearness,  that  the  witness  had  intentionally 
pirjured  himself,  the  insertion  of  the  word  ''intentionally"  in 
the  charge  is  wholly  immaterial. 

The  court  also  refused  in  this  case,  in  which  the  ])risoner  was 
sentenced  to  death,  to  give  the  following  charge:  "The  court 
instructs  the  jury,  for  the  defeiidant,  that  witnesses  may  be 
i:u])eached  by  showing  that  they  have  made  statements  at  otlu  r 
times  and  places,  and  have  testified  under  oath  at  other  times 
and  j)laces,  materially  different  from  their  testimony  on  the  wit- 
ness stand.  And  the  jury  may  disregard  the  testimony  of  any 
witness  or  witnesses  who  are  shown,  to  their  satisfaction,  to  have 
willfully  maele  statements  or  given  sworn  testimony  at  other 
times  and  places  materially  in  cemflict  with  their  testimony  on 
the  v»'itnes3  st^iud  in  this  c.'.se.     But  this  testimony  to  impeach 


OWENS  V.  STATE. 


3:15 


tlie  witness  is  for  the  purpose  of  showing  such  witness  to  be 
nnworthy  of  credit,  and  not  directly  to  establish  the  guilt  or 
innocence  of  the  defrndant."  It  is  impossible  to  conceive  for 
what  reason  this  instruction  was  refused.  It  is  accurately 
dniwn,  peculiarly  appropriate  under  the  facts  in  this  case, 
and  eminently  proper  to  have  been  given,  and  its  refusal  was  a 
gricvious  error  against  the  appellant. 

Looking  at  these  three  errors,  each  one  of  them  most  vital 
and  material  to  a  fair  and  impartial  trial,  romemljoring  that 
the  conviction  of  the  defendant  resteel  exclusively  upon  the 
testimony  of  the  witness  Jx^ster,  so  far  as  the  facts  showing  his 
comuction  with  the  crime  are  concerned,  is  it  not  ntanifestly 
the  plain  duty  of  this  court  to  reverse?  Wo  are  bound  to 
administer  the  law  justly  and  impartially.  If  the  jury,  bo- 
licviug  the  witness,  as  they  had  a  right  to  do;  had  found  him 
guillv,  the  court  having  committed  no  reversible  error  in  its 
ruliiiu.,  on  the  evidence  and  instructions,  we  would  have  dis- 
rogjir*K<i  all  minor  errors  and  affirmed  the  conviction;  but  it  is 
iuiiio^-;iblc  for  any  court  of  last  resort  to  affirm  a  c<jnviction 
resting',  like  this,  on  the  solitary  testimony  of  a  callous  and 
shanu'css  perjurer, — a  self-confessed  perjurer,  where  the  <;oiirt 
has  o(  mmitted  three  errors,  each  vital,  in  the  hiahest  degree, 
to  a  fair  and  impartial  trial.  We  repeat  what  we  stated  iti 
the  case  of  Ellerhc  v.  Stale,  75  Miss.  531,  22  South.  952,  41 
]i.  II.  A.  5(51):  "If  this  error  were  a  merely  technical  one,  not 
vital  in  its  nature,  we  would  not  for  that  alone  reverse  the  judg- 
ment. *  *  *  So  far  as  the  awful  power  of  this  court  can 
be  cxert(  d  in  affirming  convictions  for  violations  of  the  law  of 
the  liUKJ,  it  shall  be  exerted;  and  mere  technical  errors,  without 
intrinsic  merit,  when  we  can,  after  careful  and  thorough  ex- 
amination of  the  whole  case,  confidently  say  that  the  right 
result  has  been  reached,  that  substantial  justice  has  been  done, 
and  that  on  a  new  trial  no  other  result  could  r/^asonab'.y  be 
arrived  at,  n'ill  not  avail  here  for  reversal  in  civil  or  criminal 
cas(s;  but  where  the  defendant  has  been,  as  here,  denied  a 
right  secured  to  him  by  the  Constitution  and  the  laws  of  the 
land,  wo  are  compelled  to  reverse  the  case  In  such  cases  the 
intcK  sts  of  society,  the  stability  of  the  laws,  the  due  administra- 
tif>n  of  justice,  demand  a  reversal.  Disregard  of  fundamental 
rijflit  in  the  case  of  the  guiltiest  defendant,  his  conviction  in 
viulatiuu  of  settled  Constitutional  and  legal  safeguards  intended 


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346 


AMERICAN  CRIMINAL  REPORTS. 


for  the  protection  of  all,  are  not  things  which  aflFcct  the  particu- 
lar defendant  in  a  given  case  alone,  but,  in  their  disastrous 
and  far-reaching  consequences,  involve,  in  future  tria's,  the 
innocent  and  guilty  alike,  subvert  justice,  and  disorganize  so- 
ciety. Guilt  should  be  punished  certainly  and  condignly,  most 
assuredly;  but  guilt  must  1x3  nianiftsted  in  accordance  with  the 
law  of  the  land,  else  some  day  the  innocent,  who  are  sometimes 
called  to  answer  at  the  bar  of  their  country,  may  come  to  find 
tluniselves  involved  in  a  common  ruin,  and  deprived  of  the  legiil 
trial  neces'sary  to  the  vindication  of  their  innocence."  Win  r(» 
the  crime  connnitted  is  one  as  atrocious  and  infamous  as  this, 
there  is  all  the  more  reason,  on  the  one  hand,  why  the  court, 
sitting  serene  amid  the  tumult  of  feeling,  should  hold  the  scales 
»»f  justice  with  even  balance, — see  to  it  that  no  just  right  of 
the  accused  is  swept  away  in  the  tem]iest  of  passion  ar(msed 
by  the  enorniily  of  the  crime;  and,  on  the  other,  why  the  court 
should  be  lih(  nil  in  its  rulings  to  the  defendant,  since  the  result 
is,  in  such  case,  almost  certainly  conviction,  if  there  be  a\\\ 
testimony  wavriinting  it,  and  hence  the  comm<m  sense  and  soiuid 
judgment  of  the  jury  may  well  be  trusted  to  reach  tiie  right 
result  without  the  aid  of  vicious  rulings  on  the  evidence  and 
the  instructions.  We  say  this  nnich  in  deference  to  the  earnest 
ai)peal  made  to  us  to  affirm  this  conviction  without  regard  to 
errors.  This  we  might  do,  and  would  do,  if  we  could  con- 
scientiously <h'clare  that  these  errors  were  not  vital.  Hut  win* 
shall  say  that  the  admission  of  evidence  as  to  the  threat,  and 
the  refusal  of  charges  going  to  the  very  essence  of  the  defense, 
were  not  most  potential  in  producing  the  result  ?  We  administer 
the  law  of  the  land  with  equal  hand  Ixtween  the  State  and  the 
prisoner  at  the  bar.  We  know  nothing  of  his  guilt  or  inno- 
cence except  as  nuinifested  to  us  by  the  record.  Neither  the 
tumult  of  popular  lieling  against  a  defendant,  nor  sympathy 
of  those  dear  to  him  in  his  l)ehalf,  tan  communicate  itself  to 
this  tribunal.  We  would  be  unworthy  of  the  high  jjlaces  we 
hold,  if,  convinced  that  vital  error  had  been  committed, — err(  r 
showing  that  a  fair  and  impartial  trial  has  not  been  had, — we 
did  not  unhesitatingly  reverse  the  judgment,  in  order  that  the 
defendant,  however  guilty,  when  finally  sentenced  to  death,  after 
having  had  a  trial  fair  and  impartial,  may  not  be  able,  dying, 
to  charge  the  administration  of  justice  with  an  execution  un- 
sanctioned bv  the  law  of  the  land. 


STATE  V.  MORRISON. 


347 


Statk  v.  Mourisox. 

64  Kan.  669—68  Pac.  Rep.  48. 

Decided  March  8,  1902. 

Homicide — Res  Gestae:  Selection  of  Jurors;  their  opinions  as  to  guilt; 
the  source  of  such  opinions;  etc. — Declarations  as  part  of  res 
gesta — Dying  declarations. 

1.  A  juror  who  was  fully  acquainted  with  the  facts  and  circumstances 

of  a  homicide,  and  who  has  a  decided  and  abiding  opinion  as  to 
the  guilt  of  the  defendant,  is  disqualified,  although  he  may  think' 
and  state  that  he  is  without  prejudice,  and  can  give  an  impartial 
verdict,  based  on  the  evidence  and  instructions  of  the  court. 

2.  Ordinarily,   rumors  and    newspaper  reports   are   not  accepted   as 

conclusive,  but  the  competency  of  a  juror  depends  upon  the  char- 
acter, and  not  the  source,  of  an  opinion;  and,  whatever  the  source 
of  information,  if  there  is  no  conviction  of  the  mind,  an  im- 
pression or  opinion,  unmixed  with  prejudice,  which  is  wholly 
contingent  upon  the  truth  or  falsity  cf  the  information,  and 
would  readily  yield  to  testimony,  there  is  no^disqualiflcation. 
u.  The  fact  that  a  juror  may  call  an  opinion  an  imprecsion,  or  state 
that  it  will  not  affect  his  verdict,  will  not  render  hira  competenC 
where  it  appears  from  thi3  whole  testimony  that  the  impression 
has  the  fixedness  and  strength  of  a  settled  opinion,  and  is  one 
which  would  probably  Influence  his  mind  and  verdict. 

4.  A  declaration  by  a  person  whose  throat  was  cut,  windpipe  severed, 

and  therefore  speechless,  written  within  from  three  to  five  min- 
utes after  her  assailant  had  been  pulled  away  from  her,  that 
"Jess  Morrison  killed  me,"  which  appears  to  have  bei^n  spon- 
taneous, and  not  the  result  of  premeditation  or  design,  is  ad- 
missible as  part  of  res  gestae. 

5.  A  declaration  of  the  cause  and  circumstances  of  a  homicide,  made 

by  one  who  had  been  informed  by  physlciaas  and  relatives  and 
admonished  by  the  charactei-  an(T  condition  of  her  wounds  that 
she  was  about  to  die,  and  which  v/as  made  when  hope  of  recovery 
had  been  abandoned,  may  be  given  in  evidence  against  the  accused. 

6.  The  fact  that  the  declaration  was  written  by  another,  and  partly 

brought  out  by  questions,  the  answers  to  which  were  communi- 
cated by  signs,  is  no  objection  to  its  admission,  where  it  appears 
that  after  the  declaration  had  been  completed  it  was  understand- 
ingly  read  and  signed  by  the  declarant. 
(Syllabus  by  the  Court.) 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


I! 


i,!|: 

!?;: 


;!•■  i' 


■iii 


1(5 


ill 


i- 


348 


AMERICAN  CRIMINAL  REPORTS. 


Ai)peal  from  District  Court,  Butler  County;  Hon.  G.  P, 
Aiknmn,  Judge. 

Jessie  Morrison,  convicted  of  manslaughter,  ajjpeals.     Re- 
'     versed. 

Redden  cG  Kramer,  V.  P.  Mooney,  and  //.  W.  Schumacher, 
for  the  appellant. 

A.  A.  Goddard,  Attorney  General;  J,  S.  West,  Assistant  At- 
torney General ;  W.  M.  lices,  County  Attorney,  and  Hamilton 
cf-  Lai/dlg  (E.  M.  Brumback  and  E.  N.  Smith,  of  Counsel), 
for  the  State. 

JoHX-sTox,  J.  On  January  22,  1900,  Jessie  Morrison  cut 
tl:e  throat  of  Clara  Wiley  Castle  with  a  razor,  from  the  eflFect 
of  which  the  latter  died.  A  few  days  before  the  tragedy  (Mara 
AViley  was  married  to  Olin  Castle,  and  it  is  claimed  that  Jessie 
Morrison  had  been  corresj^nding  with  and  was  greatly  attached 
to  him,  and  was  led  by  jealousy  to  attack  and  kill  her  successful 
rival.  She  denies  that  she  was  moved  by  such  a  motive,  and 
claimed  that  wliA  making  a  call  on  the  bride  of  a  few  days  the 
latter,  who  was  jealous  of  Jessie,  accused  lur  of  clandestin(>ly 
meeting  Mr.  Castle  several  times  and  at  dilferent  places,  and  of 
trying  to  lure  him  away  from  his  wife;  and  that  finally,  in  a 
fit  of  rage,  Mi's.  Castle  attacked  her  with  a  razor,  and  in  the 
struggle  which  followed  defendant  wrested  the  razor  from  Mrn. 
Castle's  hand,  and  in  self-defense  inflicted  the  wounds  which 
resulted  in  the  latter's  death.  About  20  cuts  and  gashes  were 
made  on  Mrs.  Castle,  mostly  on  or  near  the  throat.  There  was 
a  dec])  cut  on  the  back  of  the  neck,  several  cuts  on  each  side  of 
the  throat,  leading  into  a  common  breach,  entirely  severing  the 
windpipe.  At  aii'other  place  the  windpipe  was  cut,  and  the 
esopluigus  was  also  cut  in  two  places  Although  she  lived  until 
July  10,  1900,  she  was  imable  to  speak,  and  could  only  com- 
nmnicate  to  others  by  signs  and  by  writing.  A  prosecution  for 
murder  was  instituted  against  Jessie  Morrison,  and  the  result 
was  a  conviction  for  manslaughter  in  the  second  degree.  From 
this  conviction  she  appeals,  and  alleges  155  assignments  of 
error,  many  of  which  are  without  merit,  and  only  a  few  of 
them  will  I'cquire  special  attention. 

The  objections  mainly  discussed  by  counsel  are  those  made  in 
the  impaneling  of  the  jury  and  in  overruling  the  challenges 


STATE  V.  MORRISON. 


849 


of  jurors.  The  impaneling  of  the  jury  was  a  difficult  and  todi- 
oue  task,  owing  to  the  prominence  of  tlio  parties,  the  pitiie-s 
and  savage  attack,  which  attracted  general  attention,  and  tlio 
fact  that  Mrs.  Castle  lived  for  several  weeks  when  her  head  was 
almost  severed  from  her  body.  These  and  other  circumHtauces 
made  it  a  notorious  case,  and  naturally  wide  publicity  was  given 
to  the  tragedy  and  its  details.  !Many  of  the  jurors  examined, 
and  quite  a  numlwr  of  those  retained,  had  heard  and  rend  full 
accounts  of  the  transaction,  and  had  formed  or  expressed  opin- 
ions as  to  the  guilt  or  innocence  of  the  defendant.  For  instance, 
S.  L.  Hotter,  who  had  heard  and  read  of  the  circumstances, 
and  had  discussed  them  with  others,  and  who  had  read  an  ac- 
count of  the  preliminary  examination  in  the  papers,  and  a  full 
account  of  a  previous  trial,  which  included  the  evidence  of  the 
witnesses,  the  instructions  of  the  court,  and  the  arguments  of 
counsel,  stated  first  that  an  impression  had  been  made  on  his 
mi'id,  but  Tliat  it  was  iiot  so  fixed  and  positive  as  would  prevent 
him  rendering  a  fair  and  impartial^rdict.  On  cross-examina- 
tion, however,  he  stated: 

"(J.  Did  any  person,  in  your  presence,  express  any  opinion 
about  the  case, — as  to  the  merits  of  the  case,  as  to  the  innocence 
or  guilt  of  the  defendant?    A.  Yes,  sir. 

"Q.  Quite  a  number?    A.  Yes,  sir;  several. 

''Q.  Did  you  express  any  opinion  as  to  the  guilt  or  innocence 
of  the  defendant?     A.  Yes,  sir. 

"Q.  Several  times?    A.  Oh,  I  don't  know  how  often. 

*'Q.  But  you  have  several  times ?    A.  Yes,  sir;   I  have. 

"Q.  As  to  the  guilt  or  innocence  of  the  defendant  ?  A.  Yes, 
sir. 

*'Q.  And  at  the  time  you  expressed  that  ...pinion  you  had  an 
opinion — had  formed  an  o[i'iion — as  to  the  guilt  or  innocence 
of  the  defendant  ?    A.  Yes,  bir. 

"Q.  I  will  ask  you  if  you  have  that  oi)inion  now?  A.  Yes, 
sir. 

"Q.  And  until  it  is  removed  by  evidence  it  will  remain  in 
your  mind  i    A.  Yes,  sir. 

"Q.  And  would  require  evidence  to  remove  it?  A.  Yes,  sir. 

"Q.  Until  it  is  removed  by  evidence,  you  would  retain  an 
opinion?    A.  Yes,  sir." 

On  redirect  examination  he  stated  that  the  opinion  he  had 
was  an  impression,  and  that  he  thought  he  could  fairly  try  the 


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III! 


350 


AMERICAN  CRIMINAL  REPORTS. 


case;  that  lie  uiulerstood  the  tliflferonco  botwocn  nn  impression 
and  a  fixed  and  positive  opinion,  but  waa  unable  to  detine  it. 
He  then  said : 

"Q.  Now,  I  will  aak  if  vnu  do  not  mean  that  it  is  sueh  an 
opinion  as  could  be  changed  by  evidence  i    A.   Ves,  sir. 

"(^.  And  Uiat  is  your  opinion  «»r  impression,  is  it  i  A.  Ves, 
sir. 

"Q.  And  that  is  what  you  mean  by  saying  it  is  not  fixed  and 
settled?    A.  I  believe  80. 

"(J.  And  so  would  require  evidence  to  change  it  ?  A.  Yes, 
sir. 

"Q.  And  unless  evidence  is  introduced  to  change  it,  yon  still 
would  have  that  opinion  ?    A.  Yea,  sir." 

Isaac  Good  was  lield  to  be  cpialified  as  a  juror.  Upoji  in- 
quiry it  developed  that  he  had  read  an  account  of  the  evidence 
e.iid  the  jmiceedings  in  court  at  former  hearings  and  trials,  from 
v.liieh  he  had  formed  an  opinion  or  impression,  but  it  was  not 
of  a  fixed  or  positive  ch(fllk;ter.     On  further  inquiry  he  stated: 

"Q.  And  in  this  case  you  did  form  more  of  an  opinion  tluui 
you  ordinarily  do  from  the  newspaper  reiwrts,  did  you  not  i  A. 
I  did. 

"Q.  Have  yon  ever  expressed  any  opinion  as  to  the  guilt  or 
innocence  of  the  defendant,  Jessie  Alorrison  i    A.  I  have. 

"Q.  Have  y».n  ever  formed  any  opinion  as  to  the  guilt  or 
innocence  of  the  defendant,  Jessie  ^lorrison  ?    A.  Yes,  sir. 

'*Q.  Do  you  have  that  opinion  now?  A.  Y^es,  sir;  1  Inn'e 
that  opinion  now. 

'*Q.  Is  it  of  sucii  a  fixed  and  positive  character  that  it  would 
require  evidence  to  remove  it?     A.  It  would." 

Then  again: 

"Q.  From  what  you  heard  and  read,  have  yon  any  opinion 
as  to  whether  or  not  Jessie  Morrison  murdered  Clara  Wiley 
Castle?     A.  I  liave. 

"Q.  And  it  would  require  evidence  to  remove  that  opinion, 
would  it  ?    A.  Yt's,  sir." 

In  answer  to  otlur  questions  by  the  prosecution  lie  stated 
that  the  opinion  which  he  had  was  not  of  a  fixed  or  abiding 
t'.Kiracter,  and  that  his  mind  was  o{)en  to  a  fair  consideration  of 
tiie  testimony  that  might  be  olfered. 

The  challenge  of  A.  G.  Lamb  was  overruled.  He  stated  that 
he  had  formed  an  opinion,  but  that  it  was  not  a  positive  one. 


STATE  r.  MORRISON. 


351 


TTo  liad  hoard  persons  describe  the  tragedy  in  n  circumstantial 
way,  had  read  full  accounts  of  the  same  in  the  papers,  including 
!•(  ports  of  the  preliminary  examination  and  of  the  previous  trial, 
and  had  even  been  in  the  court  room,  and  heard  some  of  the 
witnesses  testify.    The  inquiry  was  inade: 

**Q.  Xovv,  did  you  express  any  opinion  as  to  the  guilt  or 
innocence  of  Miss  Morrison  ?    A.  Yes,  sir. 

"Q.  That  opinion  was  formed  from  what  yon  had  heard  of 
the  evidence,  and  what  you  haJ  hoard  peopL-  tell  of  the  evi- 
dence ?     A.  What  I  had  heard  and  nndj    nol  from  the  wit- 

11(  SSCP. 

"(^.  Have  you  formed  any  opinion  as  to  whether  Miss  Mor- 
'  rison  was  guilty  ?     A.  Yes,  sir. 

"Q.  And  you  have  that  opinion  now  ?    A.  Ye&,  sir. 

"(^.  Would  it  require  evidence  to  remove  it  ?    A.  Yes,  sir. 

"Q.  Is  it  of  such  a  fixed  and  positive  character  that  it  would 
remain  in  your  mind  until  it  is  removed  by  evidence  ?  A.  Yes, 
sir." 

lie  further  stated  that  when  a  person  was  charged  with  an 
ofTense,  and  brought  to  trial,  he  looked  upon  them  as  being 
guilty  until  they  were  proven  innocent.  When  asked  what  he 
understood  by  a  fixed  and  positive  opinion,  he  stated  that,  if  he 
saw  the  occurrence,  it  would  be  fixed;  that  he  was  not  sure  he 
Oduld  keep  the  evidence  which  he  had  heard  and  read  distinct 
from  the  evidence  which  he  would  hear  on  the  trial,  but  that 
he  did  not  think  what  he  had  formerly  heard  and  read  would 
influence  him  in  the  trial  of  the  case.  In  further  explanation 
he  stated  that  he  thought  he  understood  the  difference  between 
an  impression  and  an  opinion. 

"Q.  What  is  your  understanding  of  the  difference?  A. 
Opinion  is  what  I  think,  I  don't  know. 

"Q.  Opinion  is  what  you  think,  b.ut  don't  know?  A.  Yes, 
sir. 

"Q.  What  do  you  understand  an  impression  is  ?  A.  That  la 
a  great  deal  the  same. 

"Q.  In  fact,  in  your  mind,  there  is  no  distinction  between 
them  ?    A.  No,  sir." 

E.  R.  McDaniels  was  called  and  retained  over  objection, 
although  he  stated  that  he  had  formed  an  opinion  from  what 
ho  had  heard  and  read  of  the  occurrence.  In  answer  to  the 
county  attorney  he  stated  that  the  opinion  was  sucb  a  one  as  he 


v  { 


I  .  I 


',  1 


l\ 


Hlii 


l.i 


I 


352 


AMERICAN  CRIMINAL  REPORTS. 


gets  from  reading  the  newspapers,  and  was  really  an  impression ; 
that  he  could  fairly  try  the  case,  regardless  of  the  opinion  or 
impression  entertained.  On  further  inquiry,  however,  he  stated 
that  he  had  read  full  accounts  of  the  occurrence  and  of  the  trials 
in  the  Kansas  City  and  local  papers,  and  that  he  had  talked 
with  others  about  the  tragedy  and  the  trials;  that  he  had  heard 
others  express  opinions,  and  had  expressed  an  opinion  hiniseir, 
as  to  the  guilt  of  the  defendant.  In  exi)laining  the  strength  of 
his  opinion  and  the  difference  between  an  impression  and  an 
opinion,  Ik  p:<<tcd  that,  to  have  a  fixed  and  settled  opinion,  a 
person  must  have  seen  an  act  done,  while  an  impression  would 
be  what  he  got  from  reading  or  being  told  by  others. 

C  T.  ^larcum,  who  had  learned  the  facts  of  the  ease  from 
several  sources,  had  an  opinion  as  to  the  guilt  of  the  defendant, 
and  had  expressed  it  quite  a  niunber  of  times  to  others.  When 
interrogated  he  stated  that  it  was  only  a  slight  opinion,  but  that, 
until  he  heard  evidence  to  remove  it,  it  would  remain  on  his 
mind,  and  that  it  would  require  substantial  evidence  to  re- 
move it. 

O.  M.  Kramer,  who  had  heard  and  read  a  full  account  of  the 
testimony  on  former  hearings,  stated  that  he  had  formed  an 
opinion  a^  to  the  guilt  of  the  defendant,  and  still  held  it.  He 
stated  the  opinion  could  be  removed  by  evidence,  and  that  lie 
was  without  prejudice  against  the  defendant.  He  further  stated 
that  the  arrest,  preliminary  examination,  and  filing  of  an  in- 
formation against  a  person  led  him  to  think  that  such  person 
was  guilty. 

F.  C.  Simons,  who  had  heard  and  discussed  the  facts  of  the 
case,  as  well  as  read  the  testimony  of  witnesses  given  on  former 
trials,  stated  that  he  had  formed  an  opinion  as  to  the  guilt  or 
innocence  of  the  defendant;  that  he  still  had  it;  and  that  an 
account  of  the  evidence  given  by  witnesses  made  more  of  an 
impression  on  his  mind  than  an  ordinary  newspaper  report ; 
but  that  he  was  without  bias  or  prejudice  against  the  defendant, 
and  l»elieved  that  he  could  render  a  fair  and  impartial  verdict, 
regardless  of  what  he  had  heard  and  read  and  of  the  opinion 
he  held. 

G.  W.  Gibson  had  read  a  full  report  of  the  tragedy  and  trial 
in  the  papers,  and  believed  them  to  be  true.  lie  had  discussed 
the  details  of  the  case  to  some  extent  with  others,  and  had  read 
the  testimony  of  the  witnesses,  the  arguments  of  counsel,  and 


STATE  V.  MORRISON. 


353 


the  instructions  of  the  court  in  the  papers,  and  that  he  had  ex- 
])rt'S(;e(l  an  oi)inion  as  to  the  guilt  of  Miss  Morrison,  which 
(ipiiiinii  ho  still  -had.  lie  believed  he  could  be  governed  by  the 
(■\  idciicc  given  on  the  witness  stand,  and  that  his  mind  was  open 
to  a  fair  and  impartial  consideration  of  the  cnse. 

K.  E.  Stevens  was  another  juror,  who,  like  the  others,  had 
lii'iird  and  read  full  accounts  of  the  transaction  and  the  trials, 
iiiid  who  stated  that  ho  had  an  opinion  as  to  the  guilt  of  the 
(leieiidaiit,  but  that  it  was  such  an  opinion  as  would  give  way 
Id  the  testimony  of  witnesses;  and  in  answer  to  Jthe  county 
iillnnicy  stated  that  he  could  fairly  try  the  case,  and  render  an 
iiiiinirtial  verdict.  When  inquiry  was  made  as  to  the  opinion 
wliicli  lie  held,  he  stated  that  he  believed  the  accounts  which 
lie  had  rend  and  heard  to  be  true,  and  had  no  reason  to  change 
his  mind  since  the  hearing  and  reading  of  those  accounts.  Then 
tills  f(»!l(i\ved: 

"(^.  ^Mr.  Stevens,  this  o])inion  or  impression  that  you  have, 
i-;  it  (if  such  character  that  would  be  readily  removed  by  the 
evidence  that  you  would  hear  upon  the  witness  stand?  A.  It 
would  take  evidence. 

"Q.  Kead  the  question  to  him  (and  the  question  is  re-read 
to  the  jiiror).  A.  I  don't  believe  it  would  be  very  readily  re- 
moved. ' 

"Q.  Do  you  think  your  opinion  is  of  a  fixed  and  positive 
nature  i  A.  No,  sir;  it  is  not  fixed  and  positive,  but  it  would 
take  strong  evidence  to  remove  it." 

'J'he  foregoing  is  a  sample,  and  perhaps  the  strongest,  of  the 
dis(pialifying  testimony  from  jurors  who  were  retained  over  the 
ohjectioiis  of  the  defendant.  Others,  whose  disqualifications 
w<'re  Hubstantially  similar  to  those  named,  were  held  to  Ix? 
qiialilied.  Under  the  rules  established  by  the  Code  and  ap- 
plied by  former  decisions,  it  must  be  held  that  the  challenges  to 
fteveral  of  the  jurors  should  have  been  sustained.  As  has  been 
seen,  the  challenged  jurors  had  heard  and  discussed  the  material 
facts  of  the  case,  had  even  read  the  evidence  of  witnesses  and 
heard  the  argument  of  counsel  at  former  hearings  and  trials; 
iiikI,  knowing  all  the  facts  substantially  as  they  would  be 
presented  again  on  the  trial,  they  had  formed  and  expressed 
opinions  as  o  tne  gtiilt  of  the  defendant,  which  they  still  enter- 
tained. These  opinions,  too,  appear  to  have  been  of  a  settled 
and  abiding  character,  which  necessarily  influenced  the  juror 
Vol.  xm— 23 


f; ., 


F.'S  '■    'i 


3 


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354 


AMERICAN  CRIMINAL  REPORTS. 


entertaining  them,  and,  under  the  rule  in  Kansas,  disqualified 
them. 

Unlike  some  of  the  states  from  which  authorities  are  cited,  we 
have  a  statute  which  expressly  declares  that  "it  shall  be  a  good 
cause  of  challenge  to  a  juror  that  he  has  formed  or  expressed 
an  opinion  on  the  issue  or  any  material  fact  to  be  tried."  Courts 
cannot  ignore  this  provision,  nor  whittle  it  away  by  interpreta- 
tion. A  defendant  cannot  be  compelled  to  accept  a  juror  who 
has  either  formed  or  expressed  a  preconceived  opinion  as  to  the 
defendant's  guilt.  It  is  true  that  an  opinion  of  a  juror  upon 
a  conceded  fact  does  not  disqualify  him,  and  hence  a  belief 
that  the  defendant  killed  Mrs.  Castle  w"  not  a  good  objection. 
A  jiirnr,  however,  who  held  or  expressed  a  decided  opinion  as 
to  whether  the  defendant  was  justified  in  killing  the  deceased, 
or  as  to  her  guilt,  should  have  been  excluded  from  the  jury  box. 
What,  then,  shall  be  deemed  a  disqualifying  opinion?  It  is 
not,  as  has  been  determined,  a  light  and  transient  impression, 
obtained  from  vague  rumors  or  the  reading  of  brief  and  par- 
tial newspaper  reports,  which,  in  tlie  nature  of  things,  w^oulJ 
not  close  the  mind  of  an  unprejudiced  man  against  testimony. 
State  V.  Medlicott,  9  Kan.  279 ;  Slate  v.  Trcadwell,  54  Kan. 
511,  38  Pac.  813;  State  v.  Thomas,  58  Kan.  806,  51  Pac.  22S ; 
Stale  V.  Kornstett,  02  Kan.  221,  01  Pac.  805.  On  the  other 
hand,  a  strong  impression,  or  opinion  of  a  fixed  and  abiding 
character,  based  on  information  derived  from  witnesses,  or  from 
those  acquainted  with  the  facts  and  deeoiied  reliable,  will  dis- 
qualify, although  the  juror  himself  may  think  and  state  that 
he  can  fairly  try  the  case.  Stale  v.  Miller,  29  Kan.  43;  Stale 
r.  licatty,  45  Kan.  492,  25  Pac.  899;  State  v.  Snodgm^^s,  52 
Kan.  174,  34  Pac.  750;  State  v.  Beuerman,  59  Kan.  5S0,  53 
Pac.  S74;  State  v.  Start,  00  Kan.  256,  56  Pac.  15;  State  v. 
Otto,  in  Kan.  58,  58  Pac.  995. 

The  fact  that  a  juror  may  call  an  opinion  an  impression,  or 
state  that  it  will  not  aflFect  his  verdict,  will  not  render  him  com- 
petent where  it  appears  from  the  whole  testimony  that  the  iiii- 
pressinn  has  such  fixedness  and  strength  that  it  would  jirobably 
influonee  his  mind  and  verdict.  Xor  will  the  fact  that  the  opin- 
ion has  l)een  gained  from  newspapers  necessarily  take  away 
the  dis(]ualification.  The  competency  of  tlie  juror  depends  on 
the  character,  and  not  the  source,  of  the  opinion.  Ordinarily, 
rumors  or  newspaper  reports  are  not  accepted  as  conclusive, 


ilified 


•  ,' 


J':^' 


STATE  V.  MORRISON. 


355 


and  an  opinion  formed  from  such  source  is  usually  contingent 
iipiin  the  truth  or  falsity  of  the  reports,  so  that  a  juror  can 
honestly  say  that  he  has  no  decided  or  abiding  opinion.  What- 
ever the  source  of  information,  if  there  is  no  conviction  of  the 
mind,  an  opinion  unmixed  with  prejudice,  which  is  wholly 
cmitingent  \ipon  the  truth  or  falsity  of  the  information,  and 
WDuhl  yield  readily  to  testimony,  is  no  disqualification.  Here, 
lidwcver,  a  reading  of  the  examination  of  the  objectionable 
jiuMVs  shows  that  their  opinions  were  of  a  decided  and  endur- 
ing eliaracter,  w^hich  would  not  yield  readily  to  evidence,  and 
which,  as  some  of  them  declared,  it  would  take  strong  evidence 
to  remove.  We  are  aware  that  it  is  not  easy  to  obtain  a  jury 
to  try  a  case  marked  with  the  atrocity  and  sensational  features 
of  this  one;  but,  however  notorious  the  case  may  be,  the  defend- 
ant is  entitled  to  l>e  tried  by  a  jury  having  the  statutory  quali- 
tieations; — men  who  have  not  prejudged  the  case. 

The  facts  in  tlie  case  are  not  such  as  to  induce  a  diligent 
search  for  errors,  nor  to  make  slight  errors  seem  to  be  im- 
portant; but  an  examination  of  the  record  satisfies  us  that  dis- 
(Unilified  jurors  were  retained  over  the  objection  of  the  defend- 
ant.    For  this  reason  the  verdict  must  be  set  aside. 

Error  is  assigned  on  the  admission  of  a  paper  on  which  Mrs. 
Castle  had  written,  "Jess  Morrison  killed  me."  The  defendant 
and  the  deceased  were  alone  in  Mrs.  Castle's  house  when  the 
cutting  was  done,  and  neighbors,  hearing  the  cries  of  distress, 
broke  into  the  house,  and  found  the  defendant  over  the  de- 
ceased, who  was  lying  on  the  floor,  her  throat  cut  and  hacked 
in  a  horrible  manner,  the  deadly  weapon  lying  beside  her.  She 
was  bathed  in  blood,  her  windpipe  severed,  and  consequently 
was  speechless.  While  she  lay  in  this  condition,  and  within 
from  three  to  five  minutes  after  the  defendant  had  been  pulled 
away  from  her,  she  motioned  for  pencil  and  paper,  and  when 
they  were  handed  to  her  she  \vTote  the  brief  sentence  above 
(pioted.  It  was  the  first  expression  after  the  cutting,  and  Avas 
so  closely  connected  with  it  and  so  spontaneous  that  it  may  be 
fairly  regarded  as  res  gestae.  Under  the  circumstances,  the 
interval  of  time  which  elapsed  between  the  cutting  and  the 
writing  of  the  words  is  not  an  objection  to  its  admission,  nor 
does  it  place  it  among  past  occurrences  or  isolated  utterances. 

"If  declarations  of  a  past  occurrence  are  made  under  such 
circumstances  as  will  raise  the  reasonable  iiresumption  that  they 


iU 


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ll 


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.  1 


356 


AMERICAN  CRIMINAL  REPORTS. 


are  the  spontaneous  utterances  of  thoughts  created  by  or  sprinjr- 
ing  out  of  the  transaction  itself,  and  so  soon  thereafter  as  to 
exclude  the  presumption  that  they  are  the  result  of  preniedihi- 
tiou  and  design,  they  will  be  admissible  as  part  of  res  (jediic." 
21  Am.  &  Eng.  Enc.  Law,  101.  The  declaration  by  Mrs.  Cas- 
tle appears  to  have  been  voluntary  and  spontaneous,  and  so 
closely  connected  with  it  as  to  be  really  a  part  of  the  transac- 
tion and  to  exclude  the  idea  of  fabrication. 

For  another  reason  no  error  was  committed  by  admitting  tlic 
declaration.  That  the  defendant  killed  the  deceased  is  a  con- 
ceded fact,  and,  even  if  it  were  no  part  of  the  res  gestae,  error 
could  not  have  been  predicated  upon  it. 

The  admission  of  the  dying  declaration  of  Mrs.  Castle  is 
made  a  ground  of  error.  Although  she  lived  some  time  after 
the  statement  was  signed,  it  is  clear  that  it  was  made  in  the 
full  belief  and  sense  of  impending  death.  She  had  been  in- 
formed by  the  physicians  and  by  her  mother  that  the  end  was 
near,  and  the  character  and  conditions  of  her  wounds  a<lmnn- 
islied  her  that  she  was  about  to  die.  Evidently  she  possessed 
the  mental  qualifications  to  understand  her  condition,  and  the 
purpose  and  effect  of  her  declaration.  It  was  true  that  it  was 
written  by  another,  and  partly  elicited  by  questions,  but  these 
are  not  objections  to  its  admission.  After  it  was  written,  sh{> 
read  it  over  carefully  and  then  asked  for  a  pencil,  with  whicli 
she  deliberately  affixed  her  signature.  The  testimony  indicat(  s 
that  the  statement  was  fairly  written,  that  she  fully  understood 
its  contents  when  she  signied  it,  and  that  it  was  signetl  wluii 
hope  or  expectation  of  recovery  had  been  abandoned.  No  error 
was  committed  in  its  admission;  but  for  the  error  conunittdl 
in  the  impaneling  of  the  jury  the  judgment  of  the  District 
Court  must  be  reversed,  and  the  cause  remanded  for  a  new 
trial. 

All  the  justices  concurring. 


il 


STATE  17.  ROBINSON.  857 


State  v.  Robinson. 

52  La.  Ann.  5U— 27  So.  Rep.  129. 

Decided   .January  9,  1900. 

Homicide — Res  Gestae — Cuoss  Exami.vation — Lord  ELLENnoBot'cH : 
atatcment  of  deceased  immediately  after  fatal  shot — Harmtcss 
error — Question  to  defendant,  as  to  a  previous  coiiviction  ap- 
proved. Lord  Ellenhorougli  being  cited  as  authority;  but  in  the 
notes  the  authority  doubted,  and  two  of  Lord  Ellenborough's 
opinions  given  in  full,  denouncing  such  practice — Interruption 
of  defendant  as  a  ivitness,  followed  by  a  sentence  for  contempt 
of  Court. 

1.  When  a  person  Is  shot,  and  at  once  exclaims,  "Jim  Robinson,  yoii 

shot  me  to  death";  and,  without  delay,  runs  a  distance  of  a  little 
more  than  a  half  a  block,  yelling,  "Jim  Robinson  shot  me,"  and 
is  there  met  by  another  person,  who,  at  tlie  sound  of  the  shoot- 
i"g,  had  walked  rapidly  from  the  point,  say  a  block  distance, 
in  the  direction  of  the  shooting,  so  that  the  wounded  man  and 
the  other  met  within  30  seconds  after  the  shooting,  and  the  wound- 
ed man,  having  fallen,  said,  "I  am  shot  to  death";  and,  being 
iisUed  who  shot  him,  replied,  "Jim  Robinson  shot  me,"  the  state- 
ments thus  made  are  part  of  the  res  gestae,  and,  as  such,  admis- 
sible in  evidence  on  the  trial  of  the  person  charged  with  the 
shooting. 

2.  Where  the  accused,  being  on  the  stand  as  a  witness  in  his  own  be- 

half, is  asked,  on  cross-examination,  "Were  you  convicted  for 
hanging  on  this  murder,  once?"  and  the  question  is  objected 
to,  and  tlie  objection  is  sustained,  and  the  jury  is  charged  to 
disregard  extraneous  evidence,  and  confine  themselves  to  the 
impartial  consideration  of  the  evidence  adduced  on  the  trial;  and 
't  appears  that  the  fact  of  the  former  trial  and  conviction,  re- 
ferred to  in  the  question,  had  come  to  the  knowledge  of  the  jury 
by  means  of  evidence  provoked  by  cross-examination  of  State 
witne;?ses,  and -by' the  jury  being  placed  in  possession  of  the 
indictment,  with  indorsements  showing  said  former  trial,  con- 
viction and  sentence,  the  verdict  and  judgment  appealed  from 
will  not  be  disturbed  on  the  ground  of  injury  resulting  from  the 
question  thus  ruled  out. 

3.  Where  the  accused,  charged  with  murder,  has  voluntarily  placed 

himself  on  the  stand  as  a  witness  on  his  own  behalf,  and  is  asked 
the  question  on  cross-examination:  "You  went  up  for  cutting  a 
man?"  the  overruling  of  the  objection  that  the  record  is  toe  best 
evidence  Is  not  reversible  error. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


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358 


AMERICAN  CRIMINAL  REPORTS. 


<     I 


4.  It  la  not  reversible  error  to   permit  the  accused,  charged   with 

murder,  who  is  on  the  stand  as  a  witness  In  his  own  behalf,  to 
be  asked  concerning  a  conversation  between  himself  and  the  man 
who  had  been  shot  by  him.  In  which  the  accused  made  statements 
concerning  the  shooting,  at  variance  with  those  made  by  hini, 
under  oath,  before  the  jury. 

5.  The  Interruption  by  a  brother  of  the  deceased,  of  the  testimony 

being  given  by  the  accused,  by  an  exclamation  denying  a  f ,ut 
stated  by  the  witness,  does  not  justify  the  reversal  of  the  verdict 
and  judgment,  where  It  appears  that  the  disturber  was  called 
to  the  bar,  rebuked  and  sentenced  to  Imprisonment,  and  the 
jury  warned  to  disregard  his  ebullition,  and  the  judge  a  qio 
certifies  that.  In  his  opinion,  the  exclamation  produced  no  effect. 

Appeal  from  the  Criminal  District  Coui  ,  Parish  of  Orleans. 
MoisE,  Jndge. 

James  Robinson,  convicted  of  manslaughter,  appeals.  Af- 
firmed. 

Milton  J.  Cunningham,  Attorney  General,  and  Robert  II. 
Marr,  District  Attorney,  and  Joseph  E.  GenercUy,  Assistant 
District  Attorney,  for  the  State. 

Paul  E.  LassaJle,  for  the  appellant. 

The  opinion  of  the  court  was  delivered  by  Monror,  ,T.  De- 
fendant Avas  indicted  for  murder,  tried,  convicted  and  sentenced 
to  death,  but  upon  appeal  to  this  court,  a  new  trial  was  griiiitod 
him.  {State  v.  Robinson,  51  Ann.  G94.)  He  has  been  tried 
again,  convicted  of  manslaughter,  sentenced  to  '"  .il:  .-nMicut 
at  hard  \ahov  for  twenty  years,  and  has  again  .■  :  •;■;!.  He 
now  presents  hi^  case  to  this  court  in  five  bills  of  iv-  'p'ion,  and 
a  motion  for  new  triah 

Bill  No.  1.  It  appears  from  the  recitals  of  this  bill,  inclu;!- 
ing  the  testimony  incorporated  in  it,  that  where  Paul  Valentine, 
the  deceased,  was  shot,  one  John  Williams  was  one  block  away, 
that  he  started  "right  away"  and  "walked  fast,"  in  the  direc- 
tion of  the  sh(X)ting,  that  Valentine  had  in  the  meanwhile,  Ixeu 
running  in  Williams'  direction,  so  that  Williams  testifies:  "lie 
met  me  more  than  half  way."  Peing  asked :  "I low  far  was 
he  [Valentine]  from  the  ])lace  where  he  was  shot?"  the  wit- 
ness replied:  "I  could  not  tell  you  that."  Q.  "Was  it  half  a 
square  ?"  A.  "Near  about ;  a  little  over."  The  court  there- 
upon overruled  the  objection  to  the  question,  asked  by  the  as- 


BTA.TB  V.  ROBINSON. 


359 


sistant  district  attorney :  "What  did  Valentine  tell  you,  when 
you  got  to  him  V  and  the  witness  answered :  "He  said  that 
he  was  shot  to  death.  I  asked  him  who  shot  him.  He  said 
Jol.'u  Robinson."  And  counsel  for  the  defendant,  thereupon 
objected  and  excepted  to  the  ruling  of  the  court,  upon  the 
fri-diuul  that  the  deceased  had  run  one  square  after  being  shot, 
and  tliat  the  deceased  [witness?]  was  mar  the  comer  of  Han- 
oi ick  and  Dauphine,  which  was  fully  a  square  away  from  where 
the  shooting  occurred,  and  in  company  with  another  man, 
named  Butler,  and  that  the  prisoner  was  not  there,  and  that, 
thoreibre,  any  statenu  nt  then  made  by  the  deceased  to  this  wit- 
nc!*s  in  regard  to  the  shooting  was  irrelevant,  inadmissible,  and 
no  i»art  of  the  res  gestae.  The  judge  a  quo  gives  the  following 
as  his  reasons  for  his  ruling,  to  wit: 

''The  testimony  objected  to  in  John  Williams'  evidence  was 
clearly  a  part  of  the  res  gestae.  The  averment  in  the  bill  that 
the  witness  was  a  block  from  the  scene  of  the  shooting  when 
Valentine  made  his  statement  is  erroneous,  as  will  be  seen  by 
Williams'  entire  testimony,  which  is  made  part  of  these  written 
reasons.  The  facts  are:  Lej)age,  an  eyewitness  to  the  shoot- 
ing, heard  Valentine  exclaim,  when  shot,  'Jim  Robinson,  you 
shot  mo  to  death.'  Valentine  then  sped  rapidly  dovm  Dauphine 
street,  yelling,  'Jim  Robinson  shot  me,'  to  use  the  language  of 
the  witness  Descossa,  whom  he  passed.  Before  completing  the 
square,  lie  fell.  Williams  immediately  approached,  and  Valen- 
tine said,  'I  am  shot  to  death.'  Asked  who  shot  him,  he  rejdied, 
'Jim  Robinson  shot  me.'  Thirty  seconds  could  not  have  elapsed 
since  the  shooting. 

"From  the  time  he  was  shot  until  Willitims  reached  him,  it 
was  the  same  outpouring  of  a  distracted  mind,  without  the  addi- 
tion of  any  new  matter.  Its  sameness  negatived  any  idea  of 
prenu dilation  or  fabrication,  or  of  its  being  a  narrative  retro- 
spective in  character.  Continued  utterances  of  the  same  idea, 
uninterruptedly  made,  in  the  same  language,  indicate  the  al>- 
sence  of  any  suggest iveness.  Each  outburst  is  a  link  in  the 
same  chain  of  thought,  and  proceeds  as  much  from  the  same 
original  cause  as  the  wave  circles  of  a  pond  that  dilate  from  a 
point  whore  a  pebble  is  thrown  upon  its  surface." 

Counsel  for  the  defendant  in  his  brief  concedes  the  correct- 
ness of  the  judge's  statement  as  to  the  distance  between  the 
place  of  the  shooting  and  of  the  declaration  of  the  deceased  to 


li.-i 


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lii 


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frf 


3G0 


AMERICAN  CRIMINAL  REPORTS. 


the  witness  Williams.  lie  says,  *'The  declaration  was  not  madi' 
at  the  ]ilace  of  the  event,  but  a  little  over  half  a  square  away," 
lie  argues,  however,  that  the  declaration  occurred  after  '*the 
trouble  was  all  over,  and  after  tlie  parties  had  sei)arate»l,"  and 
that  it  contained  ''nothing  but  the  words  of  one  of  tho  par- 
ticipants, when  narrating  what  had  become  a  past  event." 

We  agree  with  the  judge  a  quo  that,  upon  the  facta  as  pre- 
sented, the  declaration  objected  to  was  ])art  of  the  res  gestae. 
That  it  was  made  at  a  distance  of  half  a  square  from  the  scene 
of  the  shooting  does  not,  under  the  circumstances  disclosed, 
affect  the  question;  since  it  was  ma'l^  within  30  seconds  after 
the  shooting,  and  as  a  direct,  immediate,  spontaneous,  and  con- 
tinuous result  of  the  impression  made  by  the  shooting,  on  the 
man  who  was  shot. 

In  State  v.  Estoup,  39  La.  Ann.  210,  1  South.  4 IS,  it  ap- 
peared that  about  10  minutes  after  the  deceased  had  been  shot 
his  brother  was  called  out  of  the  house  where  he  was  by  some 
one,  who  said  to  him  that  his  brother  was  shot;  that  when  he 
went  out  he  found  the  man  who  had  boon  shot  sitting  on  the 
steps  of  a  house,  about  60  or  70  yards  from  where  the  shooting 
was  said  to  have  taken  place,  in  company  with  a  brother-in-law; 
and  it  was  then,  and  under  those  circumstances,  that  the  declara- 
tion was  made  to  him,  which  was  admitted  as  part  of  the  n'.s 
gestae.  It  was  held  by  this  court  that  such  admission  was  er- 
roneous. 

In  State  v.  Melton,  37  La.  Ann.  77,  it  was  sought  by  the  de- 
fendants to  prove,  as  part  of  the  res  gestae,  a  certain  declara- 
tion, made  by  them  six  or  eight  minutes  after  the  killing,  after 
they  had  gone  60  or  80  yards,  and  tlu  n  n^turned  on  tlioir  way 
home,  ''or  wherever  they  went,"  which  declaration  the  ju<lge 
a  quo  held  was  evidently  "not  spontaneous,"  as  the  defendants 
had  met  the  same  witness  a  few  minutes  l)efore,  2.5  or  30  var<ls 
from  the  gate,  as  they  Avere  leaving,  and  "they*  made  no  such 
statement."  The  testimony  was  excluded  by  the  trial  judge, 
and  Ihis  court  said:  "We  cannot  say  the  ruling,  under  these 
circumstances,  was  erroneous,  but,  in  any  event,  the  matter  is 
too  unimportant  to  justify  a  reversal  on  that  ground." 

Upon  the  other  hand,  in  State  v.  Euzehe,  42  La.  Ann.  727, 
7  South.  784,  the  syUahus  reads: 

"Declarations  made  by  the  party  ehot,  immediately  after  the 
shooting,  are  a  part  of  the  facts  of  the  case,  and  of  the  ev(  nts 


STATE  V.  ROBINSON. 


361 


inseparable  from  the  crime,  and  arc  admissible  ir  f  vidence  as 
part  of  the  res  gestae." 

In  Traveler's  Insurance  Co.  v.  Mosely,  8  Wall.  397,  19  L. 
Ivl.  437,  it  was  hold  that:  ''Dcclaratidus  of  a  party  as  to  the 
ciiusc  of  his  injury,  as  that  he  had  fallen  downstairs,  made 
iiiiincdiately  after  the  oceurrencc,  arc  admissible,  as  i)art  of  the 
/•(  ,s'  (jcslae,  to  show  sucli  cause." 

In  the  case  thus  ref(>rred  to,  the  Supreme  Court  of  the  United 
States  cites  Rex  v.  Foster,  0  ('ar.  &  P.  325,  in  which  there  was 
1111  indictment  for  manslaughter  for  killing  the  deceased  by 
(hiving  a  cab  over  him.  A  wagoner,  who  was  near  by,  but  did 
nut  see  the  accident,  was  allowed  to  testify  that,  iminodiately 
iii'tcr  it  happened,  on  hearing  the  deceased  groan,  he  went  to 
liini,  and  asked  him  what  was  the  matter.  "Gurney,  13.,  said 
thai  what  the  deceased  said  at  the  instant,  as  to  the  cause  of 
the  iuieident,  was  clearly  admissible.  Park,  B,,  said  that  it 
was  the  best  possible  tcstimou}'  that,  imder  the  circumstances, 
could  be  adduced  to  show  what  knocked  the  deceased  down. 
^Ir.  Justice  Patterson  concurred.  '  The  prisoner  was  convict- 
ed." The  court  also  cited  (Jommonwcaltli  v.  McPikr,  3  Cush. 
ISl,  where  the  defendant  was  charged  with  killing  his  wife, 
and  proof  was  admitted  to  the  effect  that  the  deceased  came 
downstairs  from  her  own  room,  crying,  ";^[urder!"  and  bleed- 
ing; that  another  woman,  into  whose  room  she  was  admitted, 
went,  at  her  request,  for  a  physician ;  that  a  third  person,  who 
had  Ix'on  attracted  by  her  cries,  went  for  a  watchman,  and,  on 
his  return,  found  the  deceased  on  the  floor,  bleeding  profusely; 
and  that  she  then  told  him  that  her  Imsband  had  stabbed  her. 
It  was  held  by  the  Supreme  Court  of  Alassachusetts  that  her 
declaration  was  "of  the  nature  of  res  gestae,  and  that  the  time 
when  it  was  made  was  so  recent  after  the  injury  was  inflicted 
as  to  justify  receiving  it  on  that  grovmd."  The  court  cited 
other  eases  of  a  similar  character,  and  then,  referring  to  the 
case  before  it,  said:  ,  "Here,  the  principal  fact  is  the  bodily 
injury.  The  res  gestae  arc  the  statements  of  tlu^  c"anse  made 
by  the  assured  almost  contemporaneously  with  the  occurrence, 
and  those  relating  to  the  consequences,  made  while  the  latter 
subsisted  and  were  in  progress.  .  .  .  The  tendency  of  re- 
cent adjudications  is  to  extend,  rather  than  to  narrow,  the  scope 
of  the  doctrine.  Rightly  guarded  in  its  practical  application, 
there  is  no  principle  in  the  law  of  evidence  more  safe  in  its 


V'!'' 
;  ^  j; 

'Hi;-; 

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m 


■  ■in  :■,■ 


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1 


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3G2 


AMERICAN  CRIMINAL  REPORTS. 


results.     Tliove  is  none  which  rests  upon  a  more  solid  basis  if 
reason  and  authority." 

In  People  v.  Callaghan  (Utah),  0  Pae.  54,  it  appeared  thnl 
five  or  six  minutes  after  the  shooting  the  deceased  said:  "Patsv 
Callaghan  shot  me";  and  the  court  said,  ''The  period  of  time 
at  which  it  was  made  was  so  recent  after  the  shooting  a-^  t  > 
justify  its  admission  as  part  of  the  res  gestae.  No  time  hud 
elapsed  for  the  fabrication  of  a  story." 

In  Territory  v.  Davis  (Ariz.),  10  Pac.  359,  it  appeared  thut 
two  or  three  minutes  after  he  was  shot,  and  after  he  had  been 
carried  to  a  drug  store,  a  few  feet  away,  the  deceased  state  il 
that  the  defendant  called  to  liim  to  get  down  on  his  knees,  and, 
on  his  refusal  to  do  so,  shot  him.  This  declaration  was  j)er- 
mittcd  to  be  jjroved  as  part  of  the  res  gestae. 

The  more  generally  accej)ted  rule  upon  this  subject,  we 
think,  is  fairly  stated  as  follows,  to  wit: 

That  only  is  res  gestae  which  is  part  of  the  actual  transaction, 
or  which  is  said  or  done  in  so  short  a  time  ''after  the  transac- 
tion that  there  could  be  no  time  for  tiiought,  and  for  saying  the 
particular  thing,  or  doing  the  particular  act,  with  reference  to 
the  i)robable  elfect  upon  future  litigation.  The  real  or  ap- 
parent conflict  in  the  adjudications  upon  the  subject  is  tlu', 
result,  not  of  any  ambiguity  in  the  rule  itself,  but  of  the  differ- 
ence in  oi)inion  between  courts  as  to  the  length  of  time  that  may 
1k'  permittc  d  to  intervene  between  the  act  complained  of  and  the 
words  or  acts  that  may  be  admitted  to  qualify  or  explain  the 
original  transaction."     2G  Cent.  Law  J.  207. 

Bill  No.  2:  It  appears  from  this  bill  that  during  the  cross- 
examination  of  the  defendant,  who  bad  placed  himself  on  the 
stand  as  a  witness  in  his  own  behalf,  the  assistant  district  at- 
torney asked  him:  "Were  you  convicted  for  hanging  on  this 
same  murder,  once  ?"  Defendant's  counsel  thereupon  objected 
"to  said  questiejn  put  to  the  accused,"  and  his  objectlem  was  sus- 
tained by  the  court.  He  nevertheless  reserved  a  bill  of  exe-e";)- 
tions  to  tlie  question  asked  the  accused,  notwithstanding  the 
judge'o  ruling  thereon,  "because  said  questiem  was  intended  and 
calculated  to  impreiss  the  jury  with  the  fact  that  the  ae-cnse  1 
had  alreaely  been  convicted  of  the  same  crime  for  which  he 
was  then  being  tried,  and  that,  therefore,  they,  the  jury,  ou,i>ht 
to  do  likewise,  because,  if  he  was  not  guilty,  the  fe)rmer  jury 
would  not  have  found  him  guilty;  because  it  was  in  violation 


STATE  V.  ROBINSON. 


3G3 


we 


of  (Icfoiulnnt'a  legal  right,  tho  prrsumption  of  iiinoccnoo,  until 
pidvcii  guilty  beyond  ni!  rcusonablo  doubt.  It  therefore  had  a 
tendency  to  bias  tho  juiy.' 

The  judge's  atatenitnf,  made  part  of  the  bill,  is  that  the  ob- 
jection to  the  queati<-n  was  sustained,  and  the  question  ronmined 
uiuinowered ;  that  the  jury  was  eharged  uot  to  consider  any 
cxtnincuus  evidence,  but  to  confine  themselves,  strictly,  to  an 
impartial  consideration  of  the  evidence  adduced  on  the  trial; 
l)iit,  that  there  had  Ix^en  a  former  trial,  conviction,  and  sen- 
tence was  known  to  the  jury,  by  reason  of  the  fact  that  witnesses 
for  the  State,  being  cross-examined  on  the  second  trial,  were 
interrogated  with  regard  to  their  testimony  on  said  former  trial ; 
and  also  because  the  indictment,  with  the  indorsements  thereon 
showing  the  ])risoner'3  conviction  and  sentence,  was  ])liU'ed  in 
the  hands  of  the  jury  for  the  purposes  of  the  second  trial,  with- 
out objection,  although  they  were  notified  to  disregard  such  in- 
dorsements. Under  these  circumstances,  we  are  of  opinion  that 
no  injury  to  the  defendant  and  no  reversible  error  is  disclosed 
in  this  bill. 

Jjill  Xo  3 :  During  the  cross-examination  of  tho  defendant, 
as  to  the  length  of  time  that  he  had  been  out  of  the  peniten- 
tiary, and  how  long  he  had  been  there,  he  was  asked  by  the 
ii-isistant  district  attorney :  "You  went  up  for  cutting  a  man  V 
which  (pu'stion  was  <il)jected  to,  on  the  ground  that  it;  "was  not 
a  fair  one ;  that  the  record  was  the  best  proof."  The  court  over- 
ruled tho  objection  for  reasons  whicli  are  given  at  length,  and 
which  may  be  summarized  as  follows:  That  the  question  ob- 
jected to  was  intended  to  show  the  unlawful  and  malicious  com- 
mission of  an  act  of  ])crsonal  violence,  an  offense  similar  to  the 
one  charged,  and  for  the  purpose  of  impeaching  the  credibility 
of  the  witness  in  regard  to  his  statements  relating  to  the  crime 
for  which  he  was  being  tried  ;  that  it  was  not  objected  that  evi- 
dence was  not  admissible  to  show  that  the  witness  had  served 
in  the  penitentiary  for  cutting  a  man,  but  that  it  could  not  be 
shown  by  the  witness,  the  record  being  the  best  evidence;  that 
the  record,  however,  was  not  tho  Injst  evidence,  since  it  would 
1)0  necessary  to  identify  the  witness  with  the  record ;  and  if  it 
would  1»  competent,  after  the  production  of  the  record,  to  ask 
the  witness  whether  he  was  the  person  convicted  of  such  a  crime, 
on  such  a  date,  it  was  equally  competent  to  ask  him  the  ques- 
tion as  propounded  in  the  absence  of  the  record,  inasmuch  as 


KM, 


■(: 


n — I 


864 


AMERICAN  CRIMINAL  REPORTS. 


vliotlicr  ho  was  the  iiuliviilual  who  tliU  the  cutting,  and  was 
tried,  convicted,  aeulenced,  and  imprisoned,  were  I'aciH  within 
liis  knowledge,  wliieii  the  record,  if  produced,  would  tail  tu 
disclose,  and  which  would  tlierct'oro  have  to  be  establisheil 
by  evidence  dchorti  the  record. 

We  lind  no  reversible  error  in  this  ruling.  ^Ntr.  Whartmi,  iti 
his  work  on  Criminal  Evidence,  to  which  wo  have  been  rcl'crri'd 
by  ihe  counsel  tor  the  defendant,  says: 

"In  a  li'ading  case,  J^trd  Kllenborough,  C  J.,  cfimi)olled  a 
witness  to  answer  whether  he  had  not  bein  contined  I'nr  thel'l, 
in  jail,  and,  on  the  witness  appealing  to  tlie  court,  said,  'it"  you 
do  not  answer,  I  will  send  you  there.'  In  this  country  there 
has  been  some  hesitation  in  j)ernutting  a  question,  the  answer 
to  which  not  merely  imjJiUes  disgrace,  but  touches  on  a  matter 
of  n'cord ;  but  the  tendency  now  is,  if  the  question  be  given  for 
the  purj)ose  of  honestly  d'screditing  a  witness,  to  require  an  an- 
swer."    Whart.  Cr.  Ev.  §  474. 

In  Clemens  v.  Conrad,  11)  ^lich.  17<),  tlio  Supremo  Court  of 
^Michigan,  speaking  through  Chief  Justice  Cooley,  said: 

''The  right  to  inquire  of  a  witness,  on  cross-cxamimitinn, 
whether  he  has  not  been  indicted  and  convicted  of  a  criminal 
oifcnso,  we  regard  as  settled  in  this  State  by  the  case  of  WUhiir 
V.  Flood,  1(5  ^\lich.  40.  It  is  true  that  in  that  case  the  (piestion 
was  whether  the  witness  had  Ix-en  contined  in  the  State  prisoji, 
not  whether  lie  had  been  convicted;  but  confinement  in  a  Stat(> 
prison  i)resui)poses  a  conviction  by  law,  and  to  justify  the  one 
inquiry,  and  not  the  other,  would  bo  to  uphold  a  technical  rnle, 
and  at  the  same  time  point  out  an  easy  mode  of  evading  it, 
without  in  the  least  obviating  the  reasons  on  which  it  rests.  We 
think  the  reasons  for  requiring  rec(»rd  evidence  of  conviction 
have  very  little  application  to  a  case  whore  a  party  convicted 
is  himself  uixm  the  stand,  ami  is  questioned  cnncerning  it,  with 
a  view  to  sifting  his  character  upon  cross-examinatinn.  The 
danger  that  he  will  falsely  testify  to  a  conviction  which  never 
took  place,  or  that  he  may  be  mistaken  about  it,  is  so  slight  that 
it  may  almost  Ix^  looked  \i]ion  as  purely  imaginary;  while  the 
danger  that  worthless  characters  Avill  unexj)ectedly  be  ])laced 
upon  the  stand,  with  no  opportunity  for  the  op])osite  party  to 
produce  the  record  evidence  of  their  infamy,  is  always  ])alpnblo 
and  imminent.  We  prefer  the  early  English  rule  on  this  sulv 
joct  {Priddle's  Case,  Leach,  Crown  Law,  406;  Rex  v.  Edwards, 


STATE  r.  RODINSON. 


3G5 


4  Term  K.  410),  and  fur  the  rcasdiis  which  were  stated  in  11'//- 
bur  v.  flood." 

In  Shita  V.  Murphtj,  45  La.  Ann.  D.'S,  13  South.  220,  tho 
(liicstion  was  asked  a  (h^fcndant  in  a  eriininal  prosecution,  who 
liiid  viiluntarily  taken  the  stand,  utnh'r  Act  No.  20  of  Issd,  us 
ii  witness  in  his  own  behalf,  "Have  you  ever  been  arrested  fi;r 
.-iciilini^'f  and  the  objection  was  made,  among  others,  ''that  tho 
records,  if  any,  were  primary  evidence  of  the  facts  sought  to  bo 
pi'dveii."  It  was  held  that  "win  re,  upcm  the  trial,  the  defend- 
ant oilers  himself  as  a  witness,  and  testifies  in  his  own  behalf, 
under  the  statute  of  1SS(J,  lu;  thereby  1m comes  subject  to  the 
siuiie  rul(  s,  and  is  called  ujKin  to  submit  to  the  same  tests,  which 
iii'e  leiially  applied  to  other  witnesses";  and  the  ruling  of  tho 
lower  cdurt,  fiverruling  the  objection,  was  sustained. 

'I'liis  ruling  has  ])cvn  ailirmed  in  Stale  v.  Alrxis,  If)  La.  Ann. 
".(T-'!,  !•'{  South.  ;JU4,  and  in  Slalc  v.  Soulheru,  48  La.  Ann.  028, 
1!»  South.  008. 

I>ill  Xo.  4  was  reserved  to  the  action  of  tho  trial  judge  in 
overruling  the  objections  to  the  following  questions  jirupouuded 
by  the  assistant  district  attorney  to  the  accused,  while  the  latter 
was  on  the  stand  as  a  witness  on  cross-examination,  to  wit: 

'•Q.  Vou  were  brought  to  Valentine's  bedside  ?  A.  Yes, 
sir." 

"Q.  ^Vhon  you  were  brought  there  did  not  Valentine  say, 
'Jim,  ytiu  shot  mo?'     A.  Yes,  sir." 

"(^.  And  did  not  you  say,  'Xo,  Paul;  I  did  not  do  it.?'  A. 
Yes,  sir;  I  had  a  reason,  because  I  seen  his  brother  with  a  dou- 
ble-barrel shotgun  in  the  yard." 

The  ground  of  objection  "was  "that  anything  said  to  the  ac- 
cused after  the  shooting  by  Paul  Valentine,  unless  it  was  a 
(lying  declaration,  was  not  evidence,  and  not  part  of  this  case." 
The  reasons  of  tho  judge  for  overruling  the  objection  are  thus 
stated:  ''In  his  direct  examination  the  witness  testified  be 
did  the  killing.  At  the  bedside  of  the  accused  [deceased?]  he 
denied  it.  It  was  competent  to  show  that  out  of  court  he  made 
statements  inconsistent  with  those  he  made  in  court,  under  oath. 
It  was  also  competent  to  question  the  witness  in  relation  to  his 
prior  statements,  to  lay  the  foundation  for  contradicting  him, 
if  thev  did  not  agree  with  those  given  in  court.  The  repeti- 
tion of  the  language  of  the  deceased,  in  the  question,  'Didn't 
Valentine  say,  "Jim,  you  shot  me?"'  could  not  possibly  in- 


'111 


\ 


\l 


1 


■i 


ii 


36G 


AMERICAN  CRIMINAL  REPORTS. 


h     i 


I- 


jure  the  accused,  as  he  admitted  the  killing;  and,  aS  a  part  of 
the  res  gestae,  many  other  witnesses  swore  that  Vakutine  had 
used  the  identical  language,  while  eyewitnesses  swcjre  to  tlic 
fact  that  llobinson  did  the  killing,  which  was  uncontradicted 
and  admitted,  the  defense  being  self-defense." 

It  v.ill  be  observed  that  the  question  of  the  admissibility  ut' 
c\idcncc  as  to  this  conversation  between  the  atcus(  d  and  the 
wounded  man  now  presents  itself  under  very  ditforent  circum- 
stance s  from  those  by  which  it  was  surrounded  when  this  case 
was  before  us  on  a  previous  occasion.  The  question  then  w;is 
whether  the  State  could  jjrove  the  conversation  by  OIHccr  Felix 
Vauquolin  and  two  or  three  other  persons.  It  was  held  tliat 
the  evidence  was  not  admissible,  because  the  statement  made  liy 
the  deceased  to  the  accused  was  not  a  dying  declaration,  and  wsis 
not  part  of  the  res  gestae,  and  hence  that  the  testimony  of  the 
"officer"  and  the  ''others"  was  merely  a  repetition  by  those  wit- 
nesses of  an  accusation  made  against  the  accused  by  another 
person,  and  denied  by  the  accused.  The  court  said:  **This 
testimony  mflst  be  regarded  as  that  of  Paul  Valentine;  and  if 
he  were  living,  and  had  lx?en  put  on  the  stand  as  a  witness  for 
the  State,  he  certainly  could  not  have  been  permitted  to  re- 
late what  accusations  he  made  against  the  accused,  as  proof  of 
his  identity." 

That  Kobijison  had  gone  upon  the  stand  as  a  witness  did 
not  ajjpear  upon  the  former  a|)peal.  It  was  therefore  said  in 
the  course  of  the  opinion:  ''It  was  certainly  not  tlie  i)urpose 
of  the  State,  in  introtlucing  these  witnesses,  to  prove  the  de- 
fendant's denial  of  Vahntine's  accusation." 

As  the  ease  is  now  presented,  however,  it  appears  that  the  ac- 
cused voluntarily  placed  himself  on  the  stand,  as  a  witness  in 
his  own  behalf;  that  he  admitted  the  killing,  and  set  up  a  plea 
of  self-defense;  and  the  State  had  therefore  the  riglit  to  im- 
peach his  credibility,  and  to  lay  the  foundation  for  such  ini- 
]ieachment  by  cross-examining  him  as  to  a  conversation  Avhich 
he  had  had  upon  the  subject  of  the  killing,  in  which  it  was  be- 
lieved he  had  made  a  statement  at  variance  with  that  iiitmIc  by 
him  under  oath  before  tiie  jury.  The  questions  ask< d  were, 
Ave  think,  a  competent  exercise  of  that  right.  State  r.  Murphy, 
45  La.  Ann.  yr)S,  13  South.  221);  t>tate  r.  Alexis,  45  La.  Ann. 
073,  13  South.  394;  State  v.  Southern,  48  La.  Ann.  028,  19 
South.  GG8. 


STATE  V.  ROBINSON. 


367 


The  motion  for  new  trial  is  based  upon  the  grounds  set  up 
in  the  bills  of  exception  which  have  been  thus  considered,  and 
upon  the  further  ground  that  during  the  trial,  when  the  ac- 
cused testified  that  his  reason  for  denying  the  shooting  in  his 
conversation  with  Valentine  was  that  Valentine's  brother  was 
in  the  yard  with  a  double-barreled  shotgun,  the  said  brother, 
Prooese  Valentine,  in  open  court,  and  in  the  presence  of  the 
jury,  jumped  up  and  exclaimed,  in  a  very  excited  manner,  that 
"lie  didn't  have  no  gun,"  and  that  said  action  operated  grave 
injury  and  pr<  judice  to  the  accused. 

J{ill  No.  5,  having  been  taken  to  the  refusal  to  grant  a  new 
trial,  includes  this  ground  of  complaint.  The  judge  a  quo 
siiys:  "Prciceso  Vahiitine's  sudden  exclamation  was  immedi- 
iitcly  noticed  by  the  court.  He  was  promptly  brought  to  the 
liar,  in  ihe  i)res(  nee  of  the  jury,  rebuked,  sentenced  to  imprison- 
ment lor  21  hours  for  cont<  mpt,  and  the  jury  instructed  to  dis- 
regard the  negro's  ebullition.  In  my  opinion,  it  did  not  affect 
the  ca.se." 

We  have  no  reason  for  differing  Avith  the  learned  judge,  and 
do  not  feel  authorized  to  reverse  his  findings  upon  a  matter  with 
respect  to  which  he  was  so  peculiarly  competent  to  determine. 

J  iidgnient  affirmed. 

N()Ti:s  'Dy  J.  F.  G.). — We  cannot  agree  with  the  court  that  it  wan 
proper  to  require  the  defendant  to  answer  the  question:  "You  went 
MP  for  cutting  a  man."  Tlie  question  wai  not  only  vague  and  meaning- 
loss,  but  If  it  referred  to  a  supposed  conviction,  it  was  an  effort  to 
l)rovo  a  record  by  parol  evidence;  and  that  to  a  matter  Irrelevant  to 
the  issue  on  trial.  It  was  not  impeaching  evidence,  for  it  does  net 
appear  that  it  had  any  reference  to  a  conviction  for  an  infamous  crime, 
At  conmion  law,  a  person  convicted  of  an  infamous  crime  was  not  per- 
mitted to  testify;  but  such  conviction  could  only  be  proved  by  the 
record  of  conviction.     (Roscoc's  Crim.  Ev.  100-102.) 

To  impeach  a  wltne:^s  by  showing  the  conviction  of  a  crime,  the 
conviction  should  be  of  such  a  crime  as  would  reflect  upon  the  char- 
acter of  the  offender  for  truthfulness.  It  frequently  occurs,  that  per- 
sons who  are  convicted  of  assault,  or  assault  and  battery,  or  riot,  or 
even  of  manslaughter,  are  persons  whose  sense  of  honor  as  to  truth- 
fulness is  of  a  high  order.  A  conviction  in  such  a  ca^e  certainly  would 
1  ave  no  tendency  to  impeach  a  witness. 

The  statutes  of  Illinois  provide  that  no  person  shall  be  debarred 
l';om  testifying  because  of  a  previous  coavictlon  for  crime;  but,  that 
Luch  conviction  may  be  shown  for  the  purpose  of  affecting  the  credl- 
I  llity  of  a  witness.  The  S'ipreme  Court  of  that  State,  hold  that  the 
Ktatute  only  refers  to  such  crimes,  as  at  common  law  ieadere.1  the 


1 .     I! 


i  ! 


1. 


^ :  .  M 


368 


AMERICAN  CRIMINAL  REPORTS. 


convict  Incapable  of  testifying,  1.  e.,  infamous  crimes;  jind  tliat 
such  conviction  should  be  proved  by  the  record;  and  not  by  cross- 
examination  of  the  witness.  (Bartholomeio  v.  People,  104  111.  601;  Sim- 
mons V.  People,  150  111.  66,  36  N.  E.  Rep.  1019.)  We  have  spoken 
more  fully  upon  this  subject  In  a  previous  volume  of  these  report  ; 
to  whidi  editorial  notes  the  reader  is  referred.  See  11  Amer.  Criiii, 
Report  7o  to  71. 

In  the  case  now  under  review,  the  court  cites  as  its  principal  author- 
ity, section  474,  of  Wharton's  Crimina!  Evidence,  In  which  Mr.  Wharton 
says: 

"In  a  leading  case.  Lord  Ellenborough  C.  J.  compelled  a  witness  to 
answer  wliotlier  he  had  not  been  confined  for  theft  in  jail,  and,  on  the 
witness  appealing  to  the  Court,  said,  "If  you  do  not  answer,  I  will  semi 
you  there I" 

The  above  quotation  from  Wharton's  Criminal  Evidence  has  also 
been  received  as  authority,  in  State  v.  Taylor,  118  Mo.  153,  24  S.  W.  Rep. 
449,  11  Anicr.  Crim.  Rep.  51  and  Li(jhts  v.  State.  21st  Tex.  App.  30S, 
17  S.  W.  Rep.  428,  yet  it  may  be  well  doubted,  whether  Lord  Ellenbor- 
ough ever  used  the  language  attributed  to  him.  As  will  be  hereafter 
noticed,  Mr.  Phillips  and  Mr.  Roi^coe  refer  to  the  same  case,  but  quote 
Lord  Ellenborough  in  language  more  becoming  the  Lord  Chief  Ju.-;ti!o 
of  England,  and  represent  him  as  saying:  "If  you  do  not  answer  thf 
question  /  icill  commit  you."  And  adding,  "You  shall  not  be  com- 
pelled to  say  whether  you  are  guilty  or  net." 

Mr.  Wharton  cites,  as  his  sole  authority,  for  this  "leading  case," 
1  Starkie's  Evidence  197.  In  his  text  on  that  page,  Mr.  Starkie  mikes 
no  reference  to  Lord  Ellenborough;  but  In  a  foot  note  appears  the 
following: 

"In  the  case  of  Frost  v.  Holloway,  K.  B.  sitt.  after  HIl.  Term  ISIS, 
Ld.  Ellenborough  C.  J.  compelled  a  witness  to  answer  whether  he  bail 
not  been  confined  for  theft  in  gaol;  and  on  the  witness'  appealing  to 
the  Court,  said,  'If  you  do  not  answer,  I  will  send  you  there.'  Ex 
relatione  Guincy." 

Mr.  Phillips  in  speaking  of  the  privileges  of  witnesses  says: 

"The  case  of  Frost  agt.  HoUoivay  (4)  goes  much  further;  the  v.lt- 
ness  was  there  compelled  to  answer  a  degrading  question.  Mr.  Scarlet, 
In  cross-examining  a  witness,  asked  him  whether  he  had  not  bcL'u 
tried  for  theft  at  Reading.  The  witness  refused  to  answer,  and  ap- 
pealed to  Lord  Ellenborough  whether  he  was  bound  to  answer  su'h 
a  question.  Lord  Ellenborough  said,  'If  you  do  not  answer  the  question, 
I  will  commit  you,'  adding,  'you  shall  not  be  compelled  to  say  whetbei' 
you  were  guilty  or  not.' "—2  Phillips  on  Evidence  (Am.  Ed.  of  1867; 
794  Star  Page,  449. 

The  al)ove  is  accompanied  by  a  note  as  follows: 

"(4)  Sittings  In  K.  B.  after  H.  T.,  1818,  MS.  note,  communicated 
by  Mr.  Gurney,  who  was  counsel  in  the  cause." 

It  will  be  noticed,  that  Mr.  Starkie  and  Mr.  Phillips  each  cite  Mr. 
Gurney   (who  was  counsel  in  the  case)  as  their  authority;  and  each 


STATE  V.  ROBINSON. 


3G9 


give  a  different  account  of  it.  They  disagree  both  as  to  the  nature 
of  the  question,  and  the  language  of  the  court.  We  do  not  know 
of  any  authentic  report  of  the  case;  but  have  found  two  cases  in  which 
that  eminent  jurist  has  discountenanced  the  practice  of  asking  a  wit- 
ness, whether  he  had  previously  been  imprlsone:!  or  convicted.  We 
here  give  those  cases  in  the  language  as  reported,  as  follows: 
MILLJIAN  V.  TUCKER. 
Peake's^ Additional  Nisi  Prius  Cases  222— Thursday,  Feb.  18,  1803. 

Assiimi)sit  on  a  warranty  that  a  barge  bought  by  the  Plaintiff  of 
the  Defendant  would  continue  sound  two  years,  accidents  excepted. 

A  man  of  the  name  of  William  Perry  was  called  as  a  witness  for  the 
Plaintiff. 

Erskiite.  for  the  Defendant,  on  cross-examination,  asked  him  if  he 
had  been  imprisoned  on  a  conviction  "for  forging  coal-meters  certi- 
ficates." 

Lord  Ellenborough  told  the  witness  that  he  was  not  bound  to  answer 
the  question,  but  that  ho  might  answer  if  he  pleased.  He  refused  to 
answer  it;  and  the  cause  depending  solely  on  the  evidence  of  this 
witness, — 

Lord  Ellenborough  observed  to  the  Jury,  that  he  had  told  the  wit- 
ness he  was  not  bound  to  answer  the  question,  because  by  law  he  was 
not  bound  to  do  so;  and  that  if  the  witness  chose  to  avail  himself 
of  that  protection  which  the  law  gave  him,  he  was  not  thereby  at  all 
discredited;  and  that  he,  himself,  should,  had  he  baen  asked  such  a 
question  have  refused  to  give  an  answer,  for  the  sakvj  of  ths  justice 
of  the  country,  and  to  prevent  such  an  examination. 

The  Jury  found  a  verdict  for  the  Plaintiff;  upon  which 

Erskiue  said  he  shouhl  tender  a  bill  of  exception.  Ilis  exceptions 
were  two:  1st,  that  the  witness  had  bee.i  protected  from  answorin^ 
a  legal  iuul  proper  quest: on;  2nd,  that  his  Lordship  had  told  the  Jury 
that  he  ought  not  to  bo  at  all  discredited  by  his  refusal  to  answer; 
whereas,  whether  it  did  go  to  his  credit  or  not,  ought  to  have  been 
left  to  the  Jury  upon  the  whole  tircumstancei  attending  his  refusal 
and  demeanour,  and  that  they  should  not  have  been  to"d  that,  without 
any  consideration  of  those  circumstances,  he  deserved  full  credit 

REX  V.   LEWIS. 
4  Espinasse  225. 

This  was  Indictment  against  the  Defendants  for  an  assault. 

The  prosecutor  was  a  person  of  the  nania  of  Batterf.eld,  who  was  a 
common  informer,  and  a  man  of  a  suspicious  character. 

In  the  course  of  his  cross-examination  by  the  counsel  for  the  De- 
fondant,  he  was  asked.  If  he  liad  not  been  in  the  house  of  correction, 
in  Sussex? 

Lord  Ellenborough  interposed,  and  said.  That  that  question  should 
not  be  asked:  That  It  had  been  formerly  settled  by  the  Judges, 
among  whom  were  Chief  Justice  Treby  and  Mr.  Justice  Powell,  both 
very  great  lawyers,  that  a  witness  was  not  bound  to  answer  any  ques- 

Vol.    XIII— 24 


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370 


AMERICAN  CRIMINAL  REPORTS. 


ii! 


tlon,  the  object  of  which  was  to  degrade,  or  render  him  Infamous. 
His  Lordship  said,  that  he  thought  the  rule  ought  to  be  adhered  to, 
as  it  would  be  an  Injury  to  the  administration  of  Justice,  if  perscns, 
who  came  to  do  their  duty  to  the  public,  might  be  subjected  to  improper 
investigation. 

The  witness  was  not  permitted  to  be  examined. 

The  defendants  were  acquitted. 

Oarrow  and  for  V.ie  plaintiff. 

Erskine,  Knapp  and  Watson  for  tho  defendants.  ' 

"Whetlier  a  tvitness  i:  bound  to  ansiver  questions  tendinff  to  degrade 
him" — Views  of  Mr.  lioscoe. — Under  this  heading,  Mr.  R:scoe  on  pa.uies 
133,  134  and  135  of  his  work  on  Criminal  Evi.lence  (Shirswcod'y  Edi- 
tion of  1S35),  says: 

"The  point  has  frequently  been  raised  and  arguerl,  whether  a  wit- 
ness, whose  credit  is  sought  to  be  impeachotl  on  cross-exan'.ination, 
is  bound  to  give  an  answer  to  the  questicn3  put  to  him  with  that 
view.  The  doubt  only  exists  whetlier  t.ie  que/^tions  put  are  not  rele- 
vant to  the  matter  in  isoue,  but  are  merely  proi;ounde;l  for  the  pur- 
pose of  throwing  light  on  the  witness's  character;  for  if  the  transactio!i  i 
to  which  the  witness  is  interrogated  form  any  part  of  the  issue,  lie 
will  be  obliged  to  give  evidence,  however  strongly  it  may  reflect  up^.i 
his  cliaracter.     1  Phill.  Ev.  2G5. 

"The  first  point  to  be  considered  on  this  subject,  Is  whether  question  i 
not  relevant  to  the  matter  in  issue,  and  tending  to  degrade  the  clipi- 
acter  of  the  witness,  are  allowed  to  be  put.  There  does  not.  appear 
to  be  any  authority  in  the  earliest  cases  for  the  position,  that  the 
questions  themselves  are  inadmissible  upon  cross-examination.  In 
Cook's  case,  13  How.  St.  Tr.  334,  Treby,  C.  J.,  appear.-i  to  admit  the 
legality  of  the  practice  adding,  that  the  witncss:<5  have  not  leen 
obliged  to  answer.  In  >S'ir  John  Friend's  case,  11  How.  St.  Tr.  13 ',1, 
the  court  held  that  a  witness  could  not  be  aske  1  whether  he  was  a 
Roman  Catholic,  because  he  might  by  his  annver  subject  hims-lf  t) 
severe  penalties.  In  Layer's  case.  IG  How.  St.  Tr.  121,  a  qiesMon  tend- 
ing to  degrade  the  witne3  3  was  proposed  to  be  asked  on  the  voire  dire. 
and  Pratt,  C.  J.,  said,  'It  is  an  objection  to  his  credit,  ami  ii  it 
goes  to  his  credit,  must  he  not  be  sworn,  and  his  ere  lit  go  to  the  Jury?' 
These,  therefore,  are  only  authorities,  to  show  a  witness  will  not  to 
compelled  to  answer  such  questions.  Many  later  decisions  show  that 
such  questions  are  admissible,  though  the  witness  cannot  bo  ca'.le  I 
upon  to  answer  them.  Thus  on  an  application  to  bail  a  pri-^oner,  the 
court  allowed  the  counsel  for  the  prosecution  to  ask  one  of  the  bail, 
whether  he  had  not  stood  in  the  pillory  for  perjury.  The  court  sai  I 
there  was  no  objection  to  the  question,  as  the  answer  could  not  subje -t 
the  bail  to  any  punishment.  Edward's  case,  4  T.  R.  410.  On  Watson'v 
vase  for  high  treason,  such  questions  were  frequently  aske  1,  "a;id  it 
may  be  inferred,"  says  Mr.  PhilHps,  "from  the  opinion  ot"  the  Judges 
on  an  argument  In  that  case,  that  such  question-,  are  regular."  Gur- 
ney's  report  of  Watson's  trial,  2S8-291,  1  Phill.  Ev.  2o9,  (n).     See  also 


• 


STATE  V.  ROBINSON. 


371 


Lord  Cochrane's  trial,  419,  by  Gurney,  Hardy's  case,  24  How.  St.  Tr. 
720.  U  East,  311.  So  it  is  stated  by  Mr.  Phillips,  that  Lord  Ellen- 
boi'oiiKh  continually  permitted  such  questions  to  be  asked  without  tho 
slightest  disapprobation.  In  the  following  case,  Best,  C.  J.,  laid  down 
the  same  rule  in  these  words:  'The  rule  I  shall  always  act  upon  is, 
to  ijrotcct  witnesses  from  questions,  the  answers  to  which  would  expose 
tl'.cni  to  punishment;  if  they  are  protected  beyond  this,  from  questions 
which  tend  to  degrade  them,  many  an  innocent  man  may  suffer.' 
Ctiudrll  V.  Prntt,  M.  &  M.  108. 

"There  are,  however,  one  or  two  decisions,  countenancing  the  opinion 
that  (luestions  tending  to  degrade  the  character  of  a  witness,  shall 
rot  be  allowed  to  be  put.  Upon  an  indictment  for  an  assault,  a  common 
informer  and  man  of  suspicious  character  having  been  called,  was 
asluM'  cross-examiuation,   whether  he  had  not  been  in   the  house 

( r  ( orrection.  Upon  this  Lord  Ellenborough  interposed,  and  said  (hat 
llu:  qucstivn  should  not  he  asked.  That  it  had  been  formerly  settled 
1  y  llio  Judges,  among  whom  were  Chief  Justice  Treby  and  Mr.  Justice 
rowell,  both  very  great  lawyers,  that  a  witness  icas  not  bound  to  answer 
any  rpiestion,  the  object  of  which  was  to  degrade,  or  render  him  in- 
famous. He  added,  that  he  thought  the  rule  ought  to  be  adhered  to, 
i:s  it  would  be  an  injury  to  the  administration  of  justice,  if  persona 
who  came  to  do  their  duty  to  the  public  might  be  subjected  to  im- 
juoiiL-r  investigation.  Lewis's  case,  4  Esp.  225.  Upon  this  case  it  may 
I  ('  observed,  that  the  authorities  referred  to  by  Lord  Ellenborough 
do  not  go  to  the  length  of  excluding  the  question,  but  merely  decide 
tuit  the  witness  is  not  bound  to  answer.  As  already  stated  also.  Lord 
J]lleuborough  was  in  the  frequent  habit  of  allowing  such  quesiions  to 
1  c  put,  sui)ia,  and  on  these  grounds  Mr.  Phillips  is  disposed  to  think 
tliat  the  question  had  already  been  put  and  answered,  and  being  re- 
peated, his  lordship  thought  it  necessary  to  interpose  for  the  pro- 
toilion  of  the  witness.  1  Phill.  Ev.  2G9  (n).  In  another  case,  where 
a  witness  was  asked  on  crossexamiiation,  whether  she  lived  in  a  state 
ci'  concubinage  with  the  plaintiff.  Lord  Alvanley  interposed,  and  gave 
the  fcl lowing  opinion  on  the  subject  of  such  questions:  'He  thought 
rimslions  as  to  general  conduct  might  be  asked,  but  not  such  as  went 
iiiuiii\liately  to  degrade  the  witness.  He  would  therefore  allow  It  to 
he  aslied,  whether  she  was  married  to  the  plaintiff.  But  having  raid 
k1h>  was  not,  he  would  not  allow  it  to  be  asked,  had  she  slept  with 
lini?'  He  added,  'I  do  not  go  so  far  as  others  may.  I  do  not  say 
that  a  witness  may  not  be  asked  to  what  may  tend  to  disparage  him, 
that  would  prevent  an  investigation  into  the  character  of  the  wit- 
lu'ss,  which  may  often  be  of  importance  to  ascertain.  I  think  those 
questions  only  should  not  be  put  which  have  a  direct  effect  to  disgrace 
or  disparage  the  witness.'  Macbride  v.  Macbride,  4  Esp.  242.  Upon 
an  indictment  for  a  rape,  the  prosecutrix  on  cross-examination  was 
asked,  'Whether  she  had  not  before  had  connections  with  othei  per- 
.'^ons,  and  whether  not  with  a  particular  person  (named).'  This  ques- 
tion was  objected  to,  and  the  point  was  reserved  for  the  opinion  of 


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AMERICAN  CRIMINAL  REPORTS. 


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the  judges,  who  held  the  objection  good.  Hodgson's  case.  Russ.  &  Ry. 
C.  C.  211.  It  does  not  appear  in  the  latter  case,  whether  the  question 
Itself  was  objected  to,  or  only  that  thn  witness  was  not  bounl  to 
answer  It,  but  both  in  this  and  the  preceding  case  of  Macbride  v.  Mac- 
liidc.  it  seems  that  the  question  was  improper  to  be  put,  as  they 
imputed  the  witness  an  offense  punishable  by  the  ecclesiastical  '.aw. 
Ujion  the  same  ground.  Best,  C.  J.,  interposed  to  prevent  a  witness 
being  asked  v/hether  she  lived  in  a  state  of  incestuous  concubinage  with 
a  particular  person.  Ciindcll  v.  Pratt,  M.  &  M.  108.  Where,  in  an 
action  of  seduction,  the  party  seduced  was  asked  whether  she  had 
not  been  criminal  with  other  men,  Lord  Ellenborough  said,  this  was 
a  question  she  ought  not  to  answer,  and  that  the  same  point  haviiii; 
been  referred  to  the  judges,  they  were  all  of  the  same  opinion.  Dodd 
V.  Xorris,  3  Campp.  519. 

"With  regard  to  compelling  a  witness  to  answer  questions  teiidins^ 
to  degrade  him,  (such  questions  not  being  relevant  to  the  matter  in 
issue)  there  appear  to  be  only  two  authorities  that  a  witness  is  .^^^o 
bound.  In  Holding's  case,  O.  B.  1821,  Arch.  Cr.  PI.  102,  2d  ed.,  Bayley, 
J.'s  reported  to  have  ruled,  that  though  a  witness  may  refuse  to  ansv.er 
a  question  exposing  him  to  punisliment,  yet  all  other  questions,  for 
the  purpose  of  impeaching  his  character,  may  not  only  be  put.  but 
must  be  answered.  So  where  in  a  civil  cause,  a  witness  being  askod 
on  cross-examination,  whether  he  had  not  been  tried  for  theft,  refn^in,^ 
to  answer,  and  appealing  to  Ix)rd  Ellenborough,  whether  he  wa3  bound  to 
answer,  his  Lordship  said:  'If  you  do  not  answer  the  question,  1 
will  commit  you,'  adding,  'you  shall  not  be  compelled  to  say  whether 
you  were  guilty  or  not.'    Frost  v.  HoUoway,  1818,  1  Phill.  Ev.  2G3  (n)." 

Comments  on  the  above. — It  will  be  observed  that  Mr.  Roscoe  cites 
no  authority  to  sustain  Mr.  Phillips'  remark,  that  Lord  Ellenborough 
continually  permitted  such  questions,  without  the  sll.u;htest  disiipi)ro- 
bation.  Whether  Mr.  Phillips  relied  upon  authentic  reports,  personal 
knowledge  or  rumors  does  not  appear.  It  will  also  be  noticed  tliat, 
Mr.  Phillips'  suggestion,  that  the  .'•uling  of  Lord  Ellenborough  in  the 
Lcicis  case  may  have  been  made  upon  a  repetition  of  the  question,  i.-i 
refuted  by  the  report  of  that  cast,  as  given  in  full  in  these  notes. 

Danger  in  blindly  follou-ing  precedent. — The  ca^e  of  Frost  v.  Hoi- 
lou-at/  seems  to  have  been  an  obscure  case,  that  was  omitted  from  the 
reports;  yet  two  eminent  law  writers  cite  it,  each  on  the  authority 
of  one  of  the  counsel  on  the  case,  each  giving  a  different  version  of 
it.  The  language  which  Mr.  Starkie  attributes  to  Lord  Ellenborou,v;h 
would  indicate  a  sudden  flash  of  anger,  and  not  cool  and  deliberate 
judgment;  yet  Mr.  Wharton  accepts  it  as  a  precedent  in  "a  leading 
case."  and  he  is  cited  and  followed  by  the  highest  Judicial  Tribunals 
of  three  American  States.  How  strikingly  applicable  are  the  remarks 
of  W.  R.  Curran,  in  an  address,  delivered  February  3rd-,  1903,  before 
the  Tasewell  Co.  Bar  Association  (35  Chi.  Legal  News.  286),  in  which 
he  said: 
"This  proneness  of  the  profession  to  be  bound  by  precedent,  even 


m 


STATE  j;.  ROBINSON. 


378 


•where  principle  seems  to  be  overruled  by  it,  while  conservative,  is  not 
an  unalloyed  benefit  In  the  administration  of  justice  or  of  the  growth 
cf  the  lawyer.  A  precedent  to  be  of  binding  force  and  to  long  hold 
the  lespect  of  the  bench  and  bar,  must  be  in  accord  with  the  great 
fundamental  principle':  of  the  law  that  have  stood  the  test  of  human 
roaHon  for  ages.  With  the  great  mass  of  reported  cases  now  accessible 
to  the  lawyer,  there  is  no  proposition  so  absurd  that  some  ease  may 
not  be  found,  which  in  the  hands  of  an  ingenious  counsel  can  be  made 
to  appear  to  lend  authority  of  precedent  to  it.  Tnis  fact  tends  to  make 
a  lawyer  a  searcher  after  citations  rather  than  a  reasoner  from  fun- 
damental legal  principles.  The  absurdity  of  this  blind  devotion  has 
been  pclntodly  emphasized  by  one  of  the  minor  poets  in  the  case  of 
The  People  V.  The  Calf. 

"One  day,  through  the  primeval  wood, 
A  calf  walketl  home,  as  good  calves  should; 
But  made  a  trail  all  bent  askew, 
A  crooked  trail  as  all  calves  do. 

"Since  then  two  hundred  years  have  fled. 
And,  I  infer,  the  calf  is  dead. 
And  from  that  day  o'er  hill  and  glade 
Through  those  old  woods  a  path  was  made; 
And  many  men  wound  in  and  out, 
And  dodged,  and  turned,  and  bent  about 
And  uttered  words  of  righteous  wrath 
Because  'twas  such  a  crooked  path. 

"This  forest  path  became  a  lane. 
That  bent,  and  turned,  and  turned  again; 
This  crooked  lane  became  a  road. 
Whore  many  a  poor  horse  with  his  load 
Tolled  on  beneath  the  burning  sun, 
And  traveled  some  three  miles  In  one. 
And  thus,  a  century  and  a  half 
They  trod  in  the  footsteps  of  that  calf. 

"The  years  passed  on  in  swiftness  fleet. 
The  road  became  a  village  street; 
And  thks.  before  men  were  aware, 
A  city's  crowded  thoroughfare. 
And  soon  the  central  street  was  this 
Of  a  renowned  metropolis. 
And  men  two  centuries  and  a  half 
Trod  in  the  footsteps  of  that  calf. 

"Eacli  day  a  hundred  thousand  rout 
Followed  the  zigzag  calf  about; 
And  o'er  this  crooked  journey  went 
The  traffic  of  a  continent. 
A  hundred  thousand  men  were  led 
By  one  calf  near  three  centuries  dead. 
They  followed  still  his  crooked  way, 
And  lost  one  nandred  years  a  day; 
For  such  reverence  is  lent 
To  well  established  precedent. 


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874 


AMERICAN  CRIMINAL  REPORTS. 

"Men  are  prone  to  go  It  blind 
Along  the  calf  paths  of  the  mind, 
And  work  away  from  sun  to  sun 
To  do  what  other  men  have  done. 
They  follow  in  the  beaten  track. 
And  out,  and  in,  and  forth,  and  back, 
And  still  their  devious  course  ])urBue, 
To  keep  the  path  that  others  do. 
But  bow  the  wise  old  wood  gods  laugh 
Who  saw  the  first  primeval  calf; 
Ah!  many  things  this  tale  might  teach, 
But  I  am  not  ordained  to  preach." 


JoiiNSOX  V.  Statk. 

8  Wyo.-  494—58  Pac.  Rep.  761. 

Decided  Nov.  4.  1899. 

Homicide — Res  Gestae:  Declaration  during  flight — Cross-examinatinn 
of  accused — Practice  as  to  tcitncss  uncalled — Instructions  as  to 
presumptio7i  of  intentions. 

1.  One  who  was  not  an  eye  witness  to  the  transaction,  but  whose  nanio 

was  indorsed  on  the  information,  though  present  in  court  \v;m 
not  examined  by  the  prosecution; — held,  that  as  no  actual  proju- 
dice  is  shown,  there  was  no  error  in  denying  defendant's  request 
to  cross-examinp  z'cch  person. 

2.  Declarations  of  defendant  during  flight  as  to  his  reasons  therefor 

are  admissible;  but  the  effects  of  the  same  should  be  limited  by 
instructions. 

3.  Declaration   by   deceased,   made  shortly  after  the  fatal   shot  was 

fired,  that:  "Johnson  shot  me;  but  he  did  not  intend  to  do  it," 
was  admissible  en  part  of  the  defense  as  a  part  of  the  res  gestae. 
(Authorities  cited.) 

4.  Evidence  of   threats   by   defendant   against   deceased   may   be   re- 

butted by  proof  of  particular  acts  showing  friendly  conduct  by 
defendant,  such  as  protecting  deceased  from  an  assault. 

5.  While  great  latitude  may  be  allowed  on  cross  examination,  it  wa.4 

error  to  ask  defendant  as  to  his  asEociations  with  criminals  during 
his  flight. 

6.  It  was  prejudicial  error,  to  instruct  the  jury,  that  deliberately 

pointing  and  firing  a  pistol  at  a  vital  part  of  the  body,  resulting 
in  death,  is  conclusive  evidence  of  an  attempt  to  kill. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


JOHNSON  J7.  STATE. 


375 


Error  to  District  Ccnirt,  Sweetwater  County;  Hon.  David  IT. 
Criiiji,  .ludge. 

I'iitrick  1^.  .lolinson,  convicted  of  murder  in  tlic  second  de- 
urce,  brings  error.     Keversed. 

E.  E.  Enterlhie,  1).  A,  ReavUI,  and  1).  0.  Thomas,  for  tho 
pliiintitt"  in  error. 

John  II.  Chiles  and  /.  .1.  Van  Orsclel,  for  the  State. 

CoRX,  J.  An  information  was  filed  against  the  defendant, 
dolinson,  charging  him  with  the  murder  of  William  Strang. 
Tlie  killing  took  place  early  in  the  morning  at  a  ranch  where 
tiie  defendant,  the  deceaned,  and  several  other  young  men  had 
stayed  overnight.  The  defense  was  that  several  of  those  present 
at  the  ranch  had  been  amusing  themselves  by  shooting  near 
each  other  with  their  pist<ds,  but  so  as  to  miss;  that  the  shot 
wliicli  caused  the  death  of  the  deceased  was  fired  in  this  v>'ay, 
and  was  aimed  some  distance  to  his  right ;  that  he  slipped  in 
tl:e  snow,  and  thus  came  within  range  of  the  bullet,  and  was 
killed,  the  defendant,  who  fired  the  shot,  not  intending  it. 
There  was  a  verdict  of  murder  in  the  second  degree,  anil  the 
dcf(  ndaiit  was  sentenced  to  tin;  ]ieniteutiary  for  life.  The  sev- 
eral errors  assigned  will  be  considered,  as  far  as  practicable,  in 
their  order. 

1.  A  witness  whoso  name  was  indorsed  upon  the  information, 
and  who  was  present  in  court,  was  not  called  by  the  prosecu- 
tion. At  the  close  of  the  evidence  for  the  State,  the  defense 
demanded  that  he  be  placed  upon  the  stand  for  ci'oss-exaniina- 
tion  by  them.  We  do  not  think  the  court  erred  in  denying  tho 
request.  The  witness  was  in  court,  and  was  afterwards  exam- 
ined by  the  defense.  He  was  not  an  eyewitness  to  the  transac- 
tion, and  no  actual  i)rejudice  to  the  defendant  by  reason  of  tho 
failure  of  the  State  to  call  him  is  pointed  out.  This  questi(,n 
was  quite  fully  discussed  in  Ross  v.  Slate  (decided  at  the  last 
term  of  this  court),  ^u  Pac.  924. 

2.  Together  with  other  evidence  offered  by  the  prosecution 
to  show  tho  flight  of  the  accused,  a  witness  testified  that  two 
days  after  the  shooting  the  defendant  came  to  his  camp,  about 
2  o'clock  in  tho  afternoon,  and  staid  overnight;  that  while  there 
he  stated  that  a  man  by  the  name  of  Bennett  had  gone  aroinul 
by  Brown's  Park  to  get  some  fresh  horses,  and  that  when  he 


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376 


AMERICAN  CRIMINAL  REPORTS. 


returned  defendant  would  get  a  frei^h  liovse,  go  to  Kawlins,  and 
go  lioiiic  to  Iowa,  and  leave  the  country.     Upon  being  asked 
if  defendant  stated  why  he  was  going  to  leave  the  country,  tlic 
witness  replied  that  the  defendant  said  they  were  making  it 
pretty  hot  for  him  in  Brown's  Park,  and  that  he  did  not  like 
to  1)0  seen  there  after  the  horses.     Tlie  witness  stating,  U])<iii 
cross-examination,  that  defendant  said  nothing  about  the  shont- 
ing  (if  Strang,  and  that  he  did  not  understand  the  latter  reninrk 
to  have  any  connection  with  this  case,  defendant's  counsel  aski  d 
that  it  be  stricken  out  as  irrekvant  and  iminjiterial,  and  tlic 
refusal  of  the  court  to  strike  it  out  is  assign((l  as  error.     Any 
evidence  tending  to  show  flight  was  material.     It  was  shown 
that  defendant  left  the  ranch  where  the  .shooting  took   place 
ab-iut  tl:r(e  hours  and  a  ha'f  after  it  oeenrnd,  and  before  the 
dealli   of   Strang.     The  witness   stated    that,   when   dcl'endant 
came  to  his  camp,  he  was  traveling,  riding  one  horse  and  lead- 
ing another.     These  facts  certainly  had  some  tendency  to  sho.v 
flight,  and  his  declarations  in  ngard  to  his  movements,  his  in- 
tentions, and  his  reasons  for  leaving,  made  at  the  same  time, 
were  verbal  acts,  constituting  a  part  of  the  same  transactidii. 
As  such,  they  w(  re  admissible  in  evidence.     That  the  tcstininny 
was  likely  to  prejudice  the  defendant  in  the  (yes  ot"  the  jury 
cannot  bo  denied;  for  they  niiglit  be  influenced  by  the  consid- 
eration that,  however  doubtful  the  case  upon  trial   might  be, 
a  verdict  of  guilty  wouUt,  in  any  event,  result  in  placing  the 
defendant  upon  th«  right  side  of  the  ju-nitentiary.      Hut  this 
fact  cannot  bo  deenud   suilicicnt   reason   for  the   njiction  of 
relevant  testimony,  not  otlu*rwise  subject  to  any  ol)jection.     The 
court  would  no  doubt,  upon  a  request  to  that  ctTc  ct,  h:ive  ])ro- 
•tect(  d  the  defendant,  as  far  as  j.  ssible  under  the  circumstances, 
by  an  instruction  that  the  evidence  should  have  no  weight  with 
the  jury  except  as  it  might  tend  to  show  the  flight  of  the  de- 
fendant on  account  of  the  alleged  crime  for  which  ho  was  upon 
trial. 

3.  Almost  immediately  after  being  shot,  tlic  deceased  was  car- 
ried into  the  house  by  the  defendant  and  others.  The  defense 
offered  to  prove  that,  a  short  time  after  beiiig  carried  in,  the 
deceased,  upon  being  asked  how  it  occurred,  said,  'Mohnson 
shot  me,  but  he  did  not  intend  to  do  it."  The  witnes-ses  say 
that  they  do  not  know  how  long  aft?r  the  shooting  this  state- 
ment was  made ;  that  it  may  have  been  half  an  hour  or  an  hour; 


L. 


JOHNSON  V.  STATE. 


377 


tliat  it  was  not  long  The  evidence  was  cxcludcvl,  as  not  being 
11  j.iirt  of  the  res  gestae. 

Ilio  question  is  confessed  to  be  one  of  much  lifficulty,  and 
tlip  cases  arc  very  numerous,  and  not  very  harniiinious.  The 
carlv  rule  was  very  strict  that  the  (h'claration  must  he  precisely 
(■  iitemporaneous  with  the  main  transaction  charficd  as  an  of- 
f(  use.  Later,  it  has  been  held  that  the  element  of  time  is  not 
iihvnys  material,  that  no  general  rule  can  be  stated,  but  that 
( ■■('h  case  must  stand  upon  its  own  facts.  But  it  s(  ems  to  bo 
iciierally  held,  if  the  statement  is  mere  narration,  wholly  uncon- 
iKcU'd  with  the  jirincijial  fact,  it  is  inadmissible.  Upon  the 
dilicr  hand,  if  it  s])rings  spontaneously  out  of  tlie  j)rincipal 
fiict,  is  in  direct  connection  with  it,  and  is  illustrative  and  ex- 
pliiiuitory  of  it,  tlu;  declaration  should  be  a<1mitted,  iilthough  it 
iiKiy  be  narrative  in  form,  and  although  it  may  be  separated 
from  the  principal  fact  by  a  lapse  of  time  more  or  less  con- 
siderable. 

We  refer  to  a  few  of  the  cases  as  illustrating  the  circum- 
stances under  which  it  has  been  dceme(l  proper  to  admit  the  evi- 
dence. In  Stale  v.  Martin,  12-t  ]\Io.  529,  28  S,  W.  12,  the 
deceased  was  stabbed  on  the  street  at  night.  The  witness  stated 
that  he  heard  him  cry,  "Police!"  but,  sui)posing  he  was  drunk, 
walked  across  the  street  from  him;  but  seeing  him  fall,  and 
bearing  him  say,  '*!  am  fainting,"  ran  across  the  street  to  him. 
The  wounded  man  was  then  carried  into  a  saloon  across  the 
street  from  where  he  fell.  At  the  suggestion  of  some  one,  the 
witness  ran  a  block  and  a  half  for  a  ])hysician,  who  ])ut  his 
head  out  of  the  window,  and  said  he  could  not  come.  The  wit- 
ness ran  back,  and  reported  that  the  d(tctor  could  not  come.  In 
a  moment  or  so  some  one  asked  the  wounded  man,  "Do  you 
know  who  did  it?"  and  he  answered,  "Yes;  two  negroes — one 
a  little  young  fellow."  Xo  one  having  stated  in  his  ])resence 
who  did  it,  the  court  held  that  it  was  properly  admitted  as  a 
part  of  the  res  gestae,  and  the  court  say  the  statement  might 
well  be  considered  a  part  of  the  sentences  he  uttered  immedi- 
ately after  the  fatal  stab  had  been  inflicted:  That  it  was  not 
a  mere  narrative,  unsupported  by  the  principal  fact,  but  was 
in  direct  connection  with  it,  and  illustrative  and  ex]>lanatory 
of  it;  That  no  sensible  man  would  reject  such  evidence  in  his 
own  affairs ;  And  numerous  cases  are  cited  by  the  court  illustrat- 
ing the  propriety  of  the  decision. 

In 'Cow.  V.  McPike,  3  Cush.  181,  the  defendant  was  indicted 


■/I  •  ( 


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378 


AMERICAN  CRIMINAL  REPQRTS. 


for  stf.l)biiig  nnd  killing  his  wife.  The  (IcooiiFCfl  luul  run  frnm 
the  room  where  it  occurred  to  another  room  in  the  .siinic  Imu-  , 
a  story  above  On  beinji  aduutttnl,  she  had  nsked  that  a  prn  i 
and  a  i)hjsician  he  calleil,  sayinj;  she  was  killed.  A  witii(>- 
inuuediately  started  for  a  physician.  Another  wittic-'s,  :ii- 
traeted  by  the  cries  of  the  deceased,  ami  f-'oing  tnwards  the  rm  in, 
met  the  first  witness  coming  out.  Upon  being  cautioiwd  not 
to  go  in,  that  the  defendant  would  kill  him,  lie  went  for  a  watcli- 
man,  and,  coming  back,  went  immediately  to  the  room.  Tlic 
deceased  then  told  liim  that  the  defendant  had  stabbed  her,  ami 
what  she  waiitecl  done  if  she  died.  It  was  held  that  the  evi- 
dence was  properly  admitted  as  part  of  the  res  fjrstac. 

In  Insurance  Co.  v.  Moslcy,  8  Wall.  40.*],  the  contest  between 
the  parlies  was  upon  the  (juestion  of  fact  whether  the  deceased 
died  from  the  etricts  of  an  accidental  fall  down  stairs  in  the 
night  or  from  natural  causes.  The  witness  testitiecl  that  the 
deceased  left  his  Ixd  between  12  and  1  o'clnck ;  that  when  he 
came  back  he  said  he  had  fallen  down  the  back  stairs,  and  al- 
most killed  iiimself ;  that  he  had  hit  the  back  i)art  of  his  head 
in  falling  downstairs;  ...  ho  complained  of  his  head, 
nnd  ai)peiired  to  be  in  great  pain.  The  Cdurt  in  that  case  s:'y 
that  to  bring  such  dcchirations  within  the  principle,  ginerally, 
they  must  be  eimteniporaneous  with  the  main  fact  to  which  they 
relate,  but  that  the  ruli  is  by  no  means  of  universal  applica- 
tion, and  the  evidence  was  held  to  Jiave  been  properly  received. 

Uaiiorcr  R.  R.  v.  Coi/le,  .5.5  Pa.  St.  390,  was  a  suit  by  a 
peddler  on  account  of  injuries  to  himself  and  wagon  from 
being  strnr-k  by  a  train.  The  court  say:  "We  cannot  say 
that  the  declaration  of  the  engineer  was  no  part  of  the  res  (jcsfac. 
It  was  made  at  the  time  of  the  accident,  in  view  of  gofxls  strewn 
along  the  road  by  the  breaking  up  of  the  boxes,  and  seems  to 
have  grown  directly  out  of,  and  immediately  after  the  hap- 
pening of,  the  fact.  The  negligence  complaine<l  of  being  that 
of  the  engineer  himself,  we  cannot  say  that  his  declarations, 
made  u])iin  the  spot,  at  the  time,  and  in  view  of  the  eifeets 
of  his  conduct,  are  not  evidence  against  the  company,  as  a  part 
of  the  very  transaction  itself."  Although  the  declarations  were 
evidently  ma<le  after  the  accident,  and  when  the  transaction  was 
entirely  past,  the  court  speak  of  them  as  made  "at  the  time  of 
the  accident"  ;  and  with  entire  accuracy,  we  think,  for  they  were 
made  under  the  direct  and  immediate  influence  of  the  trazisac- 
tion. 


■^^ 


■  t 


»! 


'I 


JOHNSON  V.  STATE. 


379 


In  Lewis  V.  State,  2!)  Tex.  App.  201,  15  S.  W.  042,  declnrn- 
tioiis  of  the  (Icci'iuscd  made  a  luilf  hour  tu  uu  hour  and  a  half 
after  slio  was  wounded  were  held,  uucUt  the  eiretnnstances  of 
tluit  ea.sc,  to  \h}  res  rjcslae  and  achnissihh'.  And  the  court  say: 
"In  onh'r  to  eonstitute  dechirations  a  part  of  the  res  ijestae, 
it  is  n(»t  necesnary  that  they  were  precisely  eoineldent  in  point 
of  time  with  the  principal  fact.  If  they  sprang'  out  of  the 
principal  fact,  tend  to  exi)laiu  it,  were  voluntary  and  spon- 
tiiiiciius,  and  nuide  at  a  time  ho  near  it  as  to  prechidi  llio  idea 
of  (lelil)(  riitc  desiiin,  they  may  Ik'  regarded  as  eonteiiiporaneous, 
and  arc  admissihie  jn  evidence." 

In  FnUher  i\  State,  28  Tex.  App.  471,  13  S.  \V.  7rA),  .state- 
ments of  the  deceiised  as  to  the  circumstances  of  the;  shooting, 
made  ahout  half  an  hour  afterwards,  were  held  to  Ik;  admissihic 
as  res  (jcslae. 

In  Com.  V.  Werntz.  Ifil  Pa.  St.  597,  29  Atl.  272,  the  de- 
ceased had  Im'cu  carried  from  the  shed  where  he  was  wounded 
to  a  harher  shop  on  the  other  side  of  the  street,  and  across  a 
Int.  and  there  made  c<'rtain  statements  to  the  snrgcon  who 
dressed  his  wounds  as  to  the  identity  of  his  assailant,  which 
were  excluded  as  too  remote  hy  the  trial  court. 

The  Supreme  Court,  in  licdding  the  exclusion  to  Lc  error, 
s.ay :  "The  interval  of  time  from  the  stal)l)ing  an<l  the  distance 
of  the  harU-r  shop  from  the  shed  do  not  appear  with  exactness, 
nnr  are  they  material;  for  it  is  apparent  that  they  were  not 
great,  and  that  the  continuity  of  the  events  was  not  broken. 
The  declarations  were  hy  the  party  best  informed  and  most 
interested,  and  were  uuide  at  a  time  and  j)lace,  to  a  person, 
and  under  circumstances  which  effectually  exclude  the  pro- 
sumjition  that  tliey  were  the  result  of  premeditation  and  dc- 


smii. 


As  illustrating  that  the  clement  of  time  is  uot  held  to  be  con- 
trolling, in  a  New  .lersey  case,  the  deceased  Avas  assaulted  at 
night  in  ("amden,  and  received  wounds  from  which  he  aftei'- 
ward.i  died.  Statements  of  the  deceased  made  that  afternoon 
in  riiiladelphia,  that  he  intended  going  to  Camden  that  even- 
ing in  company  with  the  defendant,  were  held  to  be  admissible 
as  part  of  the  res  gestae. 

llunfer  r.  State,  40  N.  J.  Law,  495. 

In  Sloan  v.  The  State,  47  Mo.  604,  the  defendant  offered  to 
prove  that  while  the  surgeons  were  dressing  the  wounds  of 


(: 


■l:9t« 


1 

1 

i 

H 

f 

!i 

'.  i ''  ) 


't 


! : 


-; 


t  *  ' 


I 


^IMI 


li 


m 

I  V      t 


380 


AMERICAN  CRIMINAL  REPORTS. 


Moore,  for  whose  murder  he  was  being  tried,  and  immediately 
after  the  shooting  took  place,  Moore  said:  "Sloan  was  not  in 
fault,  that  he  had  drawn  on  the  difficulty  by  attacking  him,  and 
that  if  his  pistol  had  not  hung  when  he  went  to  draw  it  lie 
would  have  killed  him,"  It  was  held  that  the  evidence  was 
improperly  rejected  by  the  trial  court,  being  admissible  as  ]iait 
of  the  res  gestae.  1  Starkie,  Vol.  I,  p.  65,  in  discussing  the 
rule  that  excludes  hearsay,  says:  "The  principle  does  not  ex- 
tend to  the  exclusion  of  any  of  what  may  be  termed  real  or 
natural  lacU  and  circumstances  in  any  way  connected  with 
the  transaction,  and  from  which  any  inference  as  to  the  truth 
of  the  disputed  fact  can  reasonably  be  made."  And  Lord  Den- 
man  is  quoted  as  saying  in  Ranch  v.  Great  Wcsfcrn  R.  R.  Co., 
1  Q.  B.  GO:  "The  principle  of  admission  is  that  the  declara- 
tions are  pars  rei  gestae,  and  therefore  it  has  l)een  contended 
that  they  'must  be  contemporaneous  with  it;  but  this  has  been 
decided  not  to  be  necessary  upon  good  grounds,  for  the  nature 
and  strength  of  the  connection  with  the  act  arc  the  material 
things  to  be  looked  to,  and  although  concurrence  of  time  cannot 
but  be  always  material  evidence  to  show  the  connection,  yet  it 
is  by  no  means  essential" ;  and,  further,  "that,  if  there  be  con- 
necting circumstances,  a  declaration  may,  even  at  a  month's 
interval,  form  part  of  the  whole  res  gestae."  And  Whai-ton 
says  (Cr.  Ev,  S  203) :  "The  distinguishing  feature  of  declara- 
tions of  this  class  is  that  they  should  be  the  necessary  incidents 
of  the  litigated  act;  necessary  in  this  sense:  that  they  are  part 
of  the  innnediate  concomitants  or  conditions  oi  such  act,  and 
are  not  ])roduced  by  the  calculated  policy  of  the  actors,  .  .  . 
Incidents  that  are  thus  immediately  and  unconsciously  asso- 
ciated with  an  act,  whether  such  incidents  are  doings  or  declara- 
tions, become  in  this  way  evidence  of  the  character  of  the  act." 
And  he  explains  "that  immediateness  is  tested  by  closeness,  not 
of  time,  but  by  causal  relation." 

In  the  case  now  under  consideration,  the  declaration  is  so 
naturally  and  closely  associated  with  the  principal  act  thai  the 
connection  could  not  be  clearer  if  it  had  Ik'cu  made  at  the  mo- 
ment of  the  shooting.  There  is  nothing  in  the  evidence  which 
gives  countenance  to  the  idea  that  the  statement  was  an  after- 
thought, that  it  was  influenced  by  any  third  person,  or  by  any 
ulterior  motive.  Indeed,  the  circumstances  eifectually  preclude 
such  idea.     The  deceased  was  suffering  from  the  paiu  of  a 


JOHNSON  f.  STATE. 


381 


?uiatt'ly 

not  in 

III,  iiiid 


1ISS(1- 


iiKirfiil  wouiul,  and  would  not  l)c  likely  to  be  inventing  cxonsos 
for  his  sliiyer.  ^loreover,  at  ilie  moment  he  was  shot,  his  hrst 
cxcliiMiiition  was  addressed  to  the  defendant  himself,  as  if 
iul'orniing  him  of  a  fact  which  he  did  not  intend  and  would  not 
know:  "Oil,  .lohnson!  You  have  shot  me."  The  statement 
umlci*  consideration  un>y  fairly  be  deemed  a  continuati(m  of  the 
iii'sl  reiiiiirk.  Jt  was  not  necessary,  in  giving  the  information 
to  -Inhn-oii,  to  add,  "Von  did  not  intend  it";  for,  in  his  view, 
this  \v;is  known  both  to  the  defendant  and  himself.  But  when 
addn  st-ing  otiiers,  who  might  not  know  it,  he  expressed  his  idea 
in  fidl:  ".h^hnson  shot  me,  but  he  did  not  intend  to  do  it." 
We  think  tiie  two  remarks,  uken  together,  are  as  clearly  part 
of  liie  y'.s'  i/rslae  as  if  at  the  moment  of  the  shooting  he  had  said: 
'•flohnsoii,  \ou  have  shot  me,  but  vou  did  not  intend  it."  While 
the  weight  and  value  of  the  evidence  were  for  the  jury,  that  it 
was  very  material  for  the  defense  camiot  be  questioned,  and  its 
exchision  was  error. 

4.  The  prosecution  introduced  evidence  for  the  purjiose  of 
showing  lliat  deceased  and  defembiut  were  suitors  of  the  same 
yoiuig  lady,  and  that  about  a  month  ])rior  to  the  shooting  the 
(lel'entlani  had  threatened  the  deceased  in  connection  with  the 
alliur.  The  defense  sidysecjueutly  offered  to  prove,  as  showing 
the  friendly  relations  betwe<'n  them,  that  two  days  prior  to  the 
shooting  the  defendant  had  taken  the  ])art  of  the  deceased,  and 
prnteeted  him  from  an  assault  by  a  third  party,  but,  u]H)n  ob- 
jection, ihe  evidence  was  exclinled.  The  j)recise  ground  of  the 
ohjection  is  not  stated,  but  we  infer  from  the  brief  of  counsel 
that  it  is  contended  that,  while  it  was  competent  for  the  defend- 
ant to  show  generally  his  friendly  relations  with  the  de- 
ceased, he  could  not  do  so  by  proof  of  particular  acts  of  kind- 
ness. 

We  think  the  evidence  should  have  been  admitted.  The 
shooting  was  confessed,  and  the  sole  issue  involved,  in  the  charge 

I'  murder,  was  the  intent  of  the  defemlant.  That  the  relations 
of  the  parties  were  friendly  or  hostile  was  material  to  this 
issue,  iind  any  fact  which  would  serve  to  illustrate  such  rela- 
tions was  relevant.  It  was  admissible  for  the  defendant  upon 
precis(dy  the  same  grounds  that  the  alleged  threat  Avas  admissi- 
hle  f<»r  the  jn'osecution.  Where  reputation  is  the  issue,  it  is 
trne  it  is  generally  held,  tiiat  it  is  not  competent  to  prove  par- 
ticular acts  or  occurrences  showing  the  disposition  or  charac- 


ithi  i 


',A 


382 


AMERICAN  CRIMINAL  REPORTS. 


tcristics  of  a  person.  But  this  is  the  rule  in  sucli  cases  both 
because  actual  character  or  disposition  and  reputation  arc  two 
distinct  things,  and  because,  while  it  is  presumed  that  one  is 
always  prepared  to  defend  his  general  reimtatiou,  it  would  l>f 
unjust  and  oppressive  to  reipiire  him  to  be  always  prepared  tu 
exi)hiin  and  justify  every  transaction  of  his  life  that  might  lie 
called  in  question.  These  reasons  do  not  apply  here.  Jt  was 
the  actual  disposition  or  state  of  mind  of  the  defendant  that 
Avas  the  subject  of  inquiry.  The  best  proof  of  that  was  his  con- 
duct towards  the  deceased  at  the  time  of,  or  recently  before, 
the  shooting.  The  prosecution  had  introduced  evidence  in- 
tended to  show  that  defendant,  about  a  month  prior  to  the  shoot- 
ing, was  hostile  to  the  deceased.  It  would  be  a  strange  rule 
that  would  deny  to  the  defendant  the  right  to  produce  evidence 
that  since  that  time  lie  had  shown  his  friendship  for  the  de- 
ceased by  a  substantial  act  of  kindness.  Wharton  ?ays :  '"On 
a  charge  of  murder,  expressions  of  good  will  and  acts  of  kind- 
ness, on  the  part  of  the  prisoner  towards  the  deceased,  are  al- 
ways considered  important  evidence,  as  sh(jwing  what  was  his 
general  disposition  tov.ards  the  deceased,  from  which  llie  jury 
may  be  led  to  conclude  that  his  intention  could  not  have  been 
what  the  charge  imputes."     1  Cr.  Law,  §  635. 

5.  The  defendant,  Johnson,  o.Tend  himself  as  a  witness  on 
liis  ow'u  behalf,  and  was  fully  examined  by  his  counsel  as  to  the 
events  at  the  time  of,  and  prior  to,  the  shooting.  In  cross- 
examination  he  was  questioned,  and  required  to  answer,  over 
the  objection  of  his  counsel,  in  regard  to  his  movements  for  a 
nundjer  of  days  afterwards,  lie  was  required  to  state  the  cir- 
cumstances of  his  alleged  flight,  and  that  during  a  part  of  that 
time  he  was  associated  with  two  men  named  Lant  and  Tracy, 
and  that  they  killed  a  num  while  he  was  so  associated  with  them. 
It  is  urged  that,  as  he  was  not  examined  in  chief  upon  any  of 
these  matters,  this  was  not  proper  cross-examination,  and  that 
re(piiring  him  to  testify  in  regard  to  his  flight  was  in  violation 
of  his  constitutional  privilege,  in  that  he  was  comjielled  to 
testify  against  himself. 

The  defendant  did  not  claim  his  privilege,  and  we  think  the 
constitutional  question  does  not  arise.  Great  latitude  in  cross- 
examination  is  properly  allowed  to  test  the  credibility  of  the 
witness.  We  have  no  statute  which  limits  the  cross-examina- 
tion of  a  defendant  when  testifying  as  a  witness  in  his  own 


JOHNSON  V.  STATE. 


883 


btliiilf,  and  we  assume,  witlioiit  deciding,  that  it  slionkl  bo  gov- 
erned by  the  same  general  rules  as  the  cross-examination  of 
other  witnesses.  But  the  great  latitude  allowed  in  cross-exam- 
ination is  for  the  purpose  named, — that  the  attitude  of  the 
witness  with  reference  to  the  case  may  be  fully  understood  by 
the  jury,  so  that  they  may  judge  of  the  credibility  of  his  testi- 
iiiDiiy.  For  the  accomplishment  of  this  purpose,  the  cross- 
oxaniiiiation  is  largely  in  the  discretion  of  the  trial  judge.  But 
the  examination  upon  collateral  matters  should  be  limited  to 
that  ol)ject,  and  when  the  facts  sought  to  be  elicited  serve  in  no 
way  to  illustrate  that  question,  and  the  necessary  result,  and 
])orliaps  the  purpose,  is  simply  to  prejudice  the  defendant  in  the 
minds  cf  the  jury,  we  think  the  limit  is  exceeded.  The  inti- 
nintinii  that  the  defendant,  after  the  slaying  of  Strang,  was  con- 
sorting with  murderers,  and  was  accessory  to  a  particular  mur- 
der, cduld  not  fail  to  bo  highly  prejudicial  to  him,  and  that  it 
was  relevant  or  material  in  the  case  upon  trial  of  course  cannot 
he  ('(inlentled. 

(!.  The  court,  over  the  objection  of  the  defend  ant,  gave  to  the 
jury  the  following  instruction: 

'"Xo.  3.  Every  person  possessed  of  a  sound  mind  is  presumed 
to  intend  and  contemplate  the  necessary,  and  even  probable,  con- 
sequences of  his  deliberate  act.  The  presumption  may  in  some 
cases  l)e  conclusive,  as  where  a  person  deliberately  points  and 
tires  a  pistol  at  a  vital  point  of  another's  body.  Here,  if  the 
latter  is  killed,  the  former  cannot  be  heard  to  say  that  he  did 
not  intend  to  kill  him;  the  intention  to  kill  is  conclusively  pre- 
sume d." 

This  statement  eif  the  law  cannot  be  sustained.  A  conclu- 
sive' jn-esumption  cannot  arise  in  such  a  case  upon  any  material 
question  until  all  the  evidence  bearing  upon  it  is  considered, 
anel  the'  proof  found  to  be  beyond  reasonable  do\d)t.  And  then, 
the  intent  is  merely  an  inference  from  the  facts  in  evidence, 
and  it  is  somewhat  misleading  to  speak  of  it  as  a  presumption 
at  all.  The  etfect  e>f  the  instruction  is  to  select  a  part  of  the 
evidence  bearing  upon  the  question,  and  to  inform  the  jury  that 
it  ale>ne  is  proof  beyond  reasonable  doubt  of  the  defendant's 
intention  to  kill  the  deceased,  and  that  all  other  evidence  bearing 
upon  the  subject  is  to  be  excluded  from  their  consideration. 
To  hold  that  a  militiaman  in  a  sham  battle,  who  deliberately 
points  and  fires  his  gim  at  a  vital  part  of  the  body  of  his  friend 


':i 


K  ■  ).  :  ■ 


!  ■;•, 


.8  •: 


■■,}.■ 


i 


384 


AMERICAN  CRIMINAL  REPORTS. 


Ill 


in  the  opjiosino'  line,  and  kills  him,  cannot  be  heard  to  say  th  it 
the  ball  eartridfro  found  its  way  into  his  gun  by  fraud  or  niis- 
adventure,  "would  Ix?  as  absurd  as  it  would  be  barbarous. 

It  is  undoubtedly  proper  to  inform  a  jury  that  from  cerlnin 
acts  a  certain  intent  may  be  inferred.  It  is  a  logical  infereiic(> 
of  a  fact  in  question  from  certain  other  facts  established  by  llio 
evidence,  '.riie  inference  may  be  strong  or  weak  when  s^urli 
acts  are  considered  in  connection  with  all  the  other  facts  in  the 
case.  Lut  by  the  instrtiction  in  this  case  the  jury  were,  in 
effect,  informed  that  certain  acts  involved,  as  a  matter  of  law, 
a  certain  intent, — a  statement  which  is  not  true.  They  merely 
tend  to  jn-ove  such  intent.  The  word  "deliberately"  camint 
cure  the  detect,  unless  it  is  held  to  include  within  its  meaning' 
the  intent  to  kill.  And  it  would  then  simply  inform  the  jury 
that,  if  he  tired  with  the  intent  to  kill,  the  intent  to  kill  nni-t 
be  2)resumed.  A  jury  could  not  reasonably  be  expected  to  gather 
this  meaning  from  the  language  eni])loyed,  but  they  would  iil- 
most  inevitablv  be  led  to  understand  that  thev  were  to  rei(ct 
all  other  evidence  bearing  upon  the  intent.  The  claim  of  the 
defendant  was  that  he  lired  the  shot  without  anv  intent  to  in- 
jure  the  deceased.  The  intent  was  a  material  fact  in  the  ca*o. 
The  defendant  knew  what  his  intent  was,  and  was  competent 
to  testify  in  regard  to  it.  If  his  statement  was  true,  it  was  a 
complete  defense  to  the  charge  of  murder,  either  in  the  first  or 
second  degi'ee.  The  instruction  excluding  it  from  the  consid- 
eration of  the  jury  was  clearly  erroneous.  For  the  errors  men- 
tioned, the  judgment  will  be  reversed,  and  the  case  remanded 
for  a  new  trial.     Judgment  reversed. 

PoTTEK,  C.  J.,  and  Kis'igiit,  J.,  concur. 


f:| 


STATE  V.  SUMNER. 


385 


Pay  iliif 
I  or  luis- 

11  corlniii 
Jifcrcnco 
by  tlio 

H'll    i^Iicli 

ts  ill  the 
were,  in 
r  of  l.'iv,-, 
iiicniy 
eaiiiKit 
inpaiiiii:^' 
the  jury 
vill  iiiii-;t 
to  f>iitlicr 
voiilil  al- 
to   I'CJl  ct 

m  of  the 
'Ut  to  iu- 

tllC   CiHO. 

onipctcui: 
it  AVjis  a 
e  first  nr 
e  coiHiM- 
'ors  iiK'ii- 
emamkd 


State  v.  Sumxeij. 

130  N.  C.  718—41  S.  E.  Rep.  803. 

Decided  June  10,  1902. 

Homicide:    Dangerous  character  of  deceased — Threats — Appearance  of 

danffcr. 

1.  Deceased  made  threats  against  the  defendant,  and  followed   him 

with  a  concealed  knife  until  it  was  taken  away;  afterwards  re- 
turned and  entered  into  a  conversation  with  him;  offered  to 
shake  hands  with  defendant  and  then  refused  to  do  so;  con- 
tinued to  converse  and  then  stepped  back  with  one  foot,  putting 
his  hands  into  his  pockets  as  though  to  draw  a  weapon,  whereupon 
defendant  shot  him,  and  deceased  moved  away  a  few  feet,  and 
then  turned  around  and  attempted  to  draw  a  revolver;  whereupon 
defendant  fired,  fatally  wounding  him; — held,  that  it  was  com- 
petent for  defendant  to  show,  that  deceased  had  the  reputation 
of  being  a  treacherous  man,  and  of  inflicting  severe  injuries 
while  assuming  friendship;  but  not  to  show  specific  acts. 

2.  In  a  homicide  trial  the  accused  may  show  the  reputation  of  the 

defeased  for  specific  traits  of  character,  such  as  might  render 
him  a  dangerous  man  under  the  same  conditions  as  surround  the 
hcniicide  in  question. 

Aiipciil  from  Superior  Court,  Macon  County;  Hon.  Thomas 
J.  Shaw,  ,Iu(lt>o. 
Zc'b  Sumner,  convicted  of  maushiughter,  appeals.     Reversed. 

iSlu'pavd  lO  Shepard,  for  the  appelLnnt. 

Rohcvt  D.  Gilinan,  Attorney  General,  for  the  State. 

Cook,  .T.  Prisoner  was  indicted  for  the  murder  of  one  Led- 
bctter  and  convicted  of  manslaughter  and  sentenced  to  serve  a 
term  of  five  years  in  the  penitentiary. 

The  uncontradicted  evidence  shows  that  deceased  was  a  man 
of  danu'crons,  violent,  bad  character,  especially  when  drinking, 
and  that  he  was  drinkina,-  cm  the  day  of  the  homicide.  That 
upiiii  four  occasions  previous  to  the  day  of  the  homicide,  de- 
('( ased,  without  apparent  provocation,  violently  abu.sed  and 
cur.sed  prisf)ner,  and  soujiht  to  provoke  a  difficulty  with  him. 
I'pcn  the  day  of  the  homicide  deceased  cursed  and  abused  pris- 


i^i- 


1 


]■, 


I :, 


For  oases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 

Vol.    XIII— 25 


II 


il 


386 


AMERICAN  CRIMINAL  REPORTS. 


oiiei*  in  tlie  court  house,  and  followed  him,  with  a  knife  up  lii< 
sleeve,  to  the  clerk's  office,  and  thence  to  the  register's  office, 
and  thence  out  of  the  court  house  as  far  as  Trotter's  store,  wlicu 
prisoner  stopped,  for  fear  of  being  cut  in  the  back,  and  wariuil 
deceased  to  go  away,  when  deceased  remained,  cursing  prisoner, 
calling  him  a  damn  coward,  and  using  other  insulting  langungi , 
when  the  town  marshal  came  along,  and  prisoner  said  to  him: 
''I  make  charge  against  him  (meaning  deceased)  for  boini: 
drunk  and  disorderly.  Take  him  and  lock  him  up.  lie  ha.- 
^ollowcd  me  all  day,  and  I  don't  want  to  hurt  him."  Deceased 
seaid  to  the  marshal,  "God  damn  you,  1  would  like  to  see  you 
arrest  me."  The  marshal  said  he  ''did  not  see  that  either  liad 
done  anything  to  be  arrested  for,"  so  he  did  not  interfere.  But 
decea.-itMl's  brother  came  up,  and  carried  him  away.  One  by- 
stander said  to  prisoner,  "I  would  kill  a  man  that  woulo  tre;ir 
me  that  way,"  to  which  prisoner  replied,  "By  the  time  you  have 
been  locked  up  for  murder,  you  would  decide  that  it  is  best 
not  to  kill  a  man." 

Shortly  thereafter  prisoner  armed  himself,  and  went  up  the 
street,  attending  to  some  business,  and  while  standing  upon  the 
street,  as  prisoner  testified,  one  Palmer  said,  ''George  (meaning 
deceased)  has  been  cursing  and  abusing  you  again.  .  .  . 
There  comes  George  again,"  and  George  (deceased)  came  uj), 
and  said,  "You  say  you  have  nothing  against  me?"  and  pris- 
oner said,  "George,  I  have  told  you  this  time  and  again  that  I 
have  nothing  against  you,"  and  deceased  said,  "Well,  give  ':;e 
vour  han<l."  Prisoner  extended  his  hand  towards  him,  and  de- 
ceased  dropped  his  hand,  and  said,  "Xo,  by  God;  we  will  go  tn 
the  court  house  and  talk  this  thing  over."  After  some  other 
words,  deceased  stepped  one  foot  back,  and  put  his  hand  l)a(k. 
as  it  appeared,  in  his  right  hiji  pocket,  and  puslied  his  left  hand 
down  in  his  left  pocket,  and,  being  standing  "right  up  agaiu>t 
me,"  prisoner  drew  one  pistol  and  opened  firo  upon  him,  firing 
four  shots  in  rapid  succession,  when  deceased  walked  off  in  n 
staggering  way,  and  looking  back  at  prisoner,  with  his  hands 
near  or  about  his  hip  pockets.  While  about  10  or  1.5  sU'jis 
away,  prisoner  drew  another  pistol,  and  fired  twice,  inflicting 
the  mortal  wounds  with  a  44  pistol,  at  which  time  prisoner  testi- 
fied deceased  was  trying  to  draw  a  pistol,  which  he  saw  (and 
which  was  afterwards  found  in  his  pocket). 

Prisoner  testified  that  he  had  been  told  by  everybody  about 


:  .5 


STATE  V.  SUMNER. 


387 


dccoased'a  character  as  a  dangerous  and  violent  man,  and  had 
liocii  warned  that  he  would  walk  up  to  a  man,  and  ask  him  for 
his  right  hand,  and  stick  n  knife  in  him  with  his  left  hand; 
and  he  had  been  informed  that  he  had  cut  Lee  Allnian  that 
way,  and  had  cut  Chas.  McGce's  son  that  way,  and  thnt  he  had 
iiiisticated  James  Potts,  and  tried  to  tak(j  advantrge  of  him 
and  kill  him. 

There  were  several  witnesses  who  testified  that  they  had 
liciird  deceased  threaten  to  kill  prisoner,  and  that  some  of  these 
tlircits  had  Uvn  communicated  to  him  before  the  homicide. 
Sdinc  of  defendant's  witnesses  testified  that  during  the  firing  of 
all  I'le  shots  deceased  was  endeavoring  to  draw  his  pistol.  Some 
of  I  lie  State's  witnesses  testified  that  they  did  not  see  him  at- 
tciiijit  to  di'aw  his  pistol,  or  have  his  hand  in  or  at  his  hip 
pnckf't,  but  that  his  hatid  was  on  the  outside  of  his  coat  on 
his  hip  or  side;  some  saying  one  way,  some  another. 

J'ris(jner  offered  to  prove  by  Potts,  Ed.  McGee,  and  Chas. 
3l('Gi'e  certain  individual  difficulties  the  deceased  had  with 
thciii,  which  was  properly  excluded  upon  objection  by  the  State. 

Prisoner  oflFered  to  j)rove  by  Potts  and  Ed.  McGee  that  de- 
fcnscd  had  "the  reputation  of  being  a  man  who  would  take  the 
adviuitage  of  another,  representing  himself  to  be  his  friend,  and 
p't  the  advantage  of  him,  and  do  him  some  bodily  harm,  mak- 
ing; out  at  the  time  that  lie  was  his  friend,"  which  was,  upon 
(ihjfc'tinn  by  the  State,  excluded  to  which  prisoner  excepted. 
This  raises  the  question  whether  it  is  competent  to  show  a  gen- 
eral reputation  for  any  particular  character  for  violence,  and, 
if  so,  was  it  material  to  the  issue  joined  by  the  plea  of  not 
guilty  i 

The  rule  is  that  "evidence  of  the  general  character  of  the  de- 
ooascd,  as  a  violent  and  dangerous  man,  is  admissible  where 
there  is  evidence  tending  to  show  that  the  killing  may  have  been 
done  from  a  principle  of  self-preservation,  and  also  where  the 
evidence  is  wholly  circumstantial,  and  the  character  of  the  trans- 
action is  in  doubt."  Slate  v.  Turpin,  77  N.  C.  473,  470,  24 
Am.  Kep.  455 ;  State  v.  Mclver,  125  N.  C.  045,  (34  S.  E.  439). 

This  rule  varies  from  the  general  rule  as  to  proving  general 
character  in  that  it  permits  certain  particular  traits  of  char- 
acter to  be  shown.  The  reputed  character  of  deceased  may  be 
evidential  as  indicating  the  prisoner's  reasonable  apprehension 
of  an  attack,  for  in  a  quarrel  hie  violent  or  turbulent  character, 


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388 


AMERICAN  CRIMINAL  REPORTS. 


ns  known  to  the  accused,  may  give  to  his  conduct  a  significnnco 
of  hostility  which  woukl  ho  wanting  in  tlie  ease  of  a  niaii  nf 
ordinary  disposition.     1  Greenl.  Ev.  S  14c, 

In  State  v.  Mclvcr,  125  N.  C.  045,  the  court  held  it  to  lie 
competent  to  show  that  deceased  was  a  man  of  "vicious  teni|i(r, 
and  violent  Avhcn  he  got  angry,"  thivs  particularizing  liis 
peculiar  trait  and  condition  under  which  he  became  violent. 
The  principle  ujjon  which  the  admission  of  this  kind  of  evidciico 
is  based  is  to  show  to  the  jury  the  reasonableness  of  the  a])]ir(- 
hension  upon  which  the  accused  acted.  It  is  admissible  lo 
explain  and  excuse  the  use  of  violence  ordinarily  inexcusalile. 
Under  some  circumstances  vicdence  usod  upon  a  peaceable,  <iui(t 
man,  though  of  generally  bad  character,  would  Ix'  inexcusable, 
while  under  the  same  circumstances,  if  used  upon  a  man  of  ,i;en- 
erally  good  character,  though  bad  for  viidcnce  under  certain  enn- 
ditions  (such  as  when  under  the  influence  of  li(pior,  etc.),  Wdiil.l 
be  excusable.  A  man  may  have  a  bad  character  generally,  Imi 
good  in  some  particulars, — such  as  for  truth;  or  generally  bml, 
but  good  for  peace,  sobriety,  and  industry.  A  man  nniy  have  a 
character  bad  for  some  kinds  of  violence,  Avhile  not  bad  I'li 
oilier  kinds.  So  the  ])rinciple  upon  which  the  character  of  the 
deceased  is  admissible  in  a  ease  of  homicide  is  to  show  that  the 
accused  had  reason  to  apprehend  dajiger  or  vi(dence  from  de- 
ceased, Avhich  ap]U'ehension  would  Iw  .excited  by  the  jiarticulnr 
conditions  under  which  de<'eased  was  re])Uted  to  be  dangerniH 
and  viidcnt^  If  bad  only  when  driidcing,  then  no  appreluyisinu 
would  exist  when  he  would  l)e  solwr;  if  bad  for  using  a  knife, 
then  no  a2)]irehension  wf)uld  exist  when  out  of  reach. 

In  the  case  at  bar  the  prisoner  testified  that  he  had  'M)e(ii 
told  by  everybody  abont  deceased's  character  as  a  dangerous  and 
violent  nuin,  and  had  been  warned  that  he  wouhl  walk  up  to  a 
man  and  ask  him  for  his  right  hand  and  stick  a  knife  in  him 
with  his  left  band."  And  he  also  testified  that  upon  the  oecasiiiu 
of  the  homicide  deceased  said  to  him,  ''Well,  give  me  ymir 
hand."  Xow,  then,  if  such  were  his  general  character,  ainl 
knowing  of  his  threats,  why  shotdd  not  the  jjrisoner,  under  such 
conditions,  have  then  and  there  apprehended  serious  danger,  and 
upon  an  overt  act  of  aggression,  such  as  putting  his  hand  in  hi^ 
pocket  or  upon  his  hips,  and  liaving  such  a])prehension,  sin  mid 
lie  have  waited  longer,  and  taken  the  risk  of  the  danger  he  miiihi 
reasonably  have  apprehended  would  foilu.v?     But  his  reputa- 


LOWMAN  V.  STATE. 


389 


tiou,  if  such  he  had  for  this  particular  kind  or  practice  of 
vidltiicc,  or  this  particuhar  trick  in  executing  violence, 
vas  excluded  from  the  jury,  and  they  were  not  informed 
of  such,  if  such  existed.  If  sucii  were  the  reimtation  of 
(]( (•cased,  then  the  aj)i)rehension  of  prisoner  would  have  heen 
lui rurally  excited,  and,  upon  evidence  of  aggression  by  deceased, 
jirisoncr  would  have  understood  what  it  meant  and  defend  him- 
self  accordingly.  But,  the  evidence  having  been  excluded,  the 
jury  could  not  intelligently  judge  as  to  the  reasonableness  of 
sncli  ai)i)rehcnsion  ujxin  which  prisoner  acted,  and  upon  this 
liirf  fate  depended.  The  verdict  was  to  be  basetl  upon  what  tlie 
jury  wduhl  think  reasonable,  and  not  what  the  prisoner  thought; 
and,  not  being  furnished  with  this  evidence,  they  could  not  in- 
terpret his  conduct  in  the  light  of  the  situation  as  he  actually 
saw  it.  Therefore  this  evidence  was  material  to  explain  his 
sudden  and  extreme  violence  when  deceased  "stepped  one  foot 
back"  under  those  circumstances. 

Prisoner  had  testified  that  deceased  did  have  such  general 
character,  and  he  had  been  warned  of  it.  Then  it  was  compc- 
tdit  for  him  to  show  that  such  existed,  for  it  may  be  that  his 
apprehension  was  founded  upon  it,  and  of  that  the  jury  should 
say  whether  it  was  or  was  not  reasonably  founded. 

For  the  error  in  excluding  this  testimony  a  new  trial  must 
be  granted.  There  arc  several  exceptions  taken  to  the  charge, 
but  we  deem  it  unnecessary  to  pass  upon  them. 

isevv  trial. 


LowMAN  V.  State. 
^      109  Ga.  501—34  S.  E.  Rep.  1019. 
Decided  January  23.  1900. 


Homictdk:     Evidence  tending  to  prejudice  the  jury  against  accused — 
Oltinion  evidence — Instructions — Lack  of  con/lict  in  testimony. 

1.  Evidence  that  one  on  trial  for  crime  had  done  an  act  calculated 
to  excite  prejudice  and  ill  will  against  him  and  which  had  no 
connection  with  the  charge  under  investigation  is  inadmissible. 
Error  in  allowing  such  evidence  to  go  to  the  jury  is  cause  for  a 


r'or  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


I-    >': 


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II* 


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390 


AMERICAN  CRIMINAL  REPORTS. 


f  I 


new  trial,  when  there  Is  reason  for  apprehending  that  It  opeiatod 
Injuriously  to  the  accused. 

2.  It  Is  not  competent  for  a  witness,  while  testifying  to  the  partl(nil;iiM 

of  a  difficulty  which  he  had  seen  take  place  between  two  otlur 
persons,  to  express  his  opinion  that  at  n  given  moment  the  time 
had  come  for  one  of  them  "to  either  run  or  fight." 

3.  The  law  embraced  In  Section  73  of  the  Penal  Code  was  not  ap- 

plicable to  this  case  and  ought  not  to  have  been  given  In  char!.';o. 
In  other  respects  the  charge  of  the  Court  w;is  free  from  error. 

4.  As  there  Is  to  be  another  trial,  no  opiniou  as  to  the  merits  of  lliiij 

case  Is  expressed. 

(Syllabus  by  the  Court.) 

Error  to  the  Superior  Court,  Dawson  County;  Hon.  J.  11. 
Estes,  Judge. 

Alorgau  Lownuui,  convicted  of  murder,  brings  error,  llv- 
versed. 

IV.  /''.  Findley  and  //.  //.  Doan,  for  tlie  plaintiff  in  erntr. 

J.  M.  Terrell,  Attorney  General,  and  U'.  ^1.  Charlci!^-, 
Solicitor  General,  for  the  State. 

Li-.Mi'KJX,  P.  .T.  At  the  August  Term,  1890,  of  tlic  Superior 
Court  of  Dawson  County,  Morgan  J^owman  was  convicted  "( 
the  murder  of  Jienjamin  Anderson,  and  sentenced  to  be  exe- 
cuted. The  accused  made  a  motion  for  a  new  trial,  wiiieli  was 
overruled,  and  the  case  is  here  for  review.  TIk;  material  points 
presented  by  the  record  will  be  briefly  stated  and  discussed. 

1.  The  court  permitted  a  witness  fur  the  State  to  testify  that 
the  accused  had  "reported  a  still."  This  act,  if  committed  at  all, 
shed  no  light  on  the  charge  of  murder,  and  proof  of  it  was 
therefore  clearly  irrelevant.  Did  it  injui'e  the  accuseds  We 
are  not  at  a  loss  for  an  answer  to  this  question.  Aside  from  our 
knowledge,  derived  from  oral  tradition,  that  in 'the  mountiiiii 
districts  of  this  State  a  revenue  s])y  is  held  in  very  general  con- 
tempt, there  is  in  the  record  of  this  identical  case  evidence  tend- 
ing to  show  that  one  of  the  jury  who  trie<l  the  accused  was  quite 
hostile  to  reporters  of  stills,  and  on  this  ground  had  expressed 
the  opinion  that  Lowman  ought  to  bo  hung.  In  the  motion  for 
a  new  trial  this  juror  is,  for  the  reason  just  indicated,  attacked 
as*  incompetent.  There  was  counter  evidence  tending  to  show- 
that  he  was  ui)right,  unbiased,  and  impartial;  but  the  fact  of 
his  antipathy  to  those  who  informed  against  illicit  distillers  was 


tli 


y 


LOWMAN  V.  STATE. 


391 


clcai'ly  established.  Tliis  ia  enough  to  demand  another  trial  of 
this  fiiM".  Ko  man  should  be  dL'i)rived  of  his  life  whou  illegal 
U'.--tiui<iiiy  has  been  admitted  against  him,  and  there  is  such  good 
vca-(iii  ti»  iij)])rehend  that  it  operated  to  his  hurt  in  the  mind  of 
(iiic  of  his  triors. 

:.'.  A  witness  for  the  accused,  who  was  present  at  the  homi- 
cide, and  who  had  given  his  version  of  what  had  occurretl,  wag 
iipked  if,  at  a  certain  juiu-turc  the  time  had  not  come  for  the 
nceused  **to  either  run  or  tight."  The  answer  would  have;  been 
in  the  afHrmative,  but  it  was  properly  rejected.  Allowing  this 
tostimony  to  go  to  the  jury  would  have  been  permitting  the  wit- 
ness to  express  his  mere  o|)inion  as  to  a  matter  which  did  not 
fall  within  the  donuiin  of  "opinion  evidence."  The  miturc  of 
the  emergency  in  which  the  accused  was  placed  by  the  conduct 
of  the  deceased,  and  the  manner  in  which  it  should  have  l)een 
met,  were  matters  for  determination  by  the  jury,  and  not  by 
the  witness. 

;>.  The  motion  for  a  new  trial  alleges  error  in  charging  sec- 
tidii  TJ5  of  the  Penal  Code.  We  do  not  think  this  section  was 
ap])lical)le  to  the  case.  It  is  not  our  purpose  to  discuss  the 
evidence.  Suffice  it  to  say  it  was  not  a  liglit  Ix'gun  and  carried 
on  in  hot  blood,  with  opportunity  to  either  party  to  recede,  re- 
flect, and  endeavor  to  decline  any  further  struggle  before  the 
mortal  bhiw  was  given.  Air.  .Justice  Little  elaborately  dis- 
cussed the  law  of  this  section  in  Powell  i\  State,  101  Ga.  1),  29 
S.  E.  ;{()l) ;  and  the;  writer,  in  Tcadey  v.  Slate,  104  Ga.  74-1, 
30  S.  E.  i)ys,  undertook  to  present  a  condensed  view  of  its 
ajiplicability.  It  has  since  been  referred  to  in  Parks  r.  State, 
10.-.  Ga.  242,  ^A  S.  E.  .580;  Glover  v.  State,  105  Ga.  597,  31 
S.  E.  584 ;  and  Smith  v.  State,  100  Ga.  07:3,  32  S.  E.  851. 

Complaint  is  also  made  that  the  coiirt  failed  to  charge  sections 
70  and  71  of  the  Penal  Code.  !Much  of  the  former  section  was 
entirely  inapplicable,  and  therefore  properly  omitted,  and  the 
court  did  give  in  charge  the  law  embodied  in  section  71.  Aside 
from  the  error  above  pointed  out,  we  find  nothing  objectionable 
in  the  charge  as  a  whole. 

4.  Though  many  witnesses  were  sworn,  there  was  little  con- 
flict in  the  evidence  pro  and  con.  Indeed,  we  do  not  recall  any 
case  of  like  importance  where  there  was  such  harmony  in  the 
testimony  of  persons  who  had  so  much  apparent  reason  to  be 
biased 'one  way  or  tl;e  other. 


ni 


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392 


AMERICAN  CRIMINAL  REPORTS. 


As  the  case  is  to  be  triotl  ngain,  wv  cxpivHs  no  opinion  ns  to 
what  shouKl  be  the  Hading  of  the  next  jnry  to  whom  it  is  suL- 
niitted. 

Jndgnicnt  reversed. 

All  the  jnstices  eonenrring. 


■    ' 


CoMMOXWKALTH    V.    ZoHAMIIO. 
20 J  Pa.  St.  109— 5 J  All.  Rep.  716. 
Decided  Feb.  2,  1903. 
Homicide:     Silence  by  accused  at  preliminary  examii„^ 

1.  Silence  by  the  arruHod  during  a  judicial  Inquiry  before  the  magls 

trate  is  no  evidence  cf  guilt. 

2.  Two  prisoners,  accused  of  murder,  who  did  not  understand  t!;i' 

English  langua.s;e,  were  conimitteJ,  when  one  offered  to  make  a 
statement,  which  he  did  against  the  other  while  both  were  jot 
before  the  magistrate;  held,  that  the  silence  of  <^hc  other  waa  no 
evidence  of  guilt. 

3.  Neither  an  affidavit  nor  a  deposition  can  be  introduce.1  against  the 

accused  in  a  criminal  case. 

Appeal  from  Conrt  of  Oyer  and  Terminer,  Luzerne  County ; 
Hon.  Lynch,  dudge. 

Victor  Zoraml;o,  conviet(d  of  murder  in  the  first  degree, 
n]ipcals.    IJeversed. 

Aruued  before  Mitchkll,  Deax,  Fv.lu,  Bkown,  .Mkstukzat, 
and  i'oTTKU,  J  J. 

R.  Nelson  Bennett  and  Evan  C.  Jones,  for  the  appellant. 
B.  R.  Jones,  District  Attorney,  iov  the  Commonwealth. 

EiJOWN.  J.  The  appellant  and  Peter  Lenousky  were  charged 
jointly  with  the  murder  of  Anthony  Sennick.  IJoth  are  foreign- 
ers, .-ipeaking  their  own  language  and  not  understanding  ours. 
Tluy  were  arrested  within  a  few  hours  from  tlie  commission  of 
the  crime,  and  shortly  afterwards  given  a  liearing  before  a 
magistrate,  who  committed  them  for  trial.    At  the  hearing  there 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volu.'"e. 


im 


oil  ns  t(. 
'«  sllb- 


It'^MVO, 


COMMONWEALTH  v.  ZORAMBO. 


S98 


wii^  piTHcnt,  ninong  other  officers  of  the  hnv,  i\n  rissistant  district 
iUtnnicv,  with  his  ntcMiogrnphcr  und  uii  interpreter.  Wliilo  in 
ilic  iiiii^istrate's  office  LenouHky  said  he  wishetl  to  make  a  statc- 
iiM  lit.  lie  was  iniinediatc'ly  warned  hy  the  assistant  district 
iittiirney  not  to  speak,  as  any  8tat<'nK'nt  he  wetihl  make  might 
lie  iisrd  against  him  on  his  trial  in  court,  lie  persisted,  however, 
ill  making  a  statement,  and,  after  having  been  sworn  by  tho 
magistrate,  proceeiUd  to  give  in  detail  n  confession  which  ho 
aliegtd  Zorambo  had  made  to  hiui  of  his  guilt  alone  of  tho 
(viiiie  charged  against  tlum  both.  Tiiis  alleged  confession  im- 
pliciited  no  one  but  Zorambo,  and  tli  ■  statement  made  by  Lcii- 
ousky  was  manifestly  for  the  puri)iiHe  of  exculpating  liimself, 
will  I  lias  since  been  also  convicted  of  tho  wilful  murder  of  Sen- 
nick.  The  statement  was  taken  down  by  the  stenographer  as 
iiih  rpreted  to  him  by  the  interpnter.  Zorambo  sat  still  and 
niinlc  no  rei)ly  to  the  accusation  of  his  eonfederale  in  the  crime. 

It  is  not  disputed  by  the  commonwealth  that,  when  Len<jusky 
was  warned  by  the  assistant  district  attorney,  through  an  inter- 
preter, not  to  niake  any  statement,  Zijranibo  heard  and  nndcr- 

st I  what  was  said.    On  his  trial  this  statement  of  Lenouskv, 

as  taken  down  by  the  stenographer — practically  a  dei)osition  by 
him — was  offered  by  the  conunonwealth  as  evidence  of  tho 
prisoner's  guilt — tirst,  because  be  had  not  spoken  and  denied 
the  accusation  when  Lenousky  made  it  before  the  nuigistratc; 
and,  secoiully,  because,  on  <^he  day  following,  Avlien  his  atten- 
tion was  called  to  it,  he  had  declared  it  to  be  false.  At  the  time 
the  oti'er  was  made  it  was  objected  to,  for  the  reason  that  the 
statement  "was  made  during  a  legal  proceeding,  when  the  ac- 
cused had  no  right  to  speak,  or  at  least  was  not  bound  to  si)eak." 
This  objection  was  overruled  by  tlie  learned  trial  judge,  and  tho 
oti'er  admitted,  for  the  reason,  as  given  by  him,  that  the  state- 
ment "was  made  after  the  proceeding  had  ended  before  tho 
magistrate."  The  single  error  assigned  is  that  "the  court  erred 
in  admitting  in  evidence  ths  stenographer's  notes  of  Lenousky's 
statement  made  in  the  magistrate's  office." 

It  is  by  no  means  certain  that  the  hearing  was  over  at  tho 
time  Lenousky  made  his  statement,  though  the  magistrate  tes- 
titied  that  it  was,  and  the  assistant  district  attornev  corrobo- 
rates  him  to  a  certain  extent.  The  latter,  on  his  examination  in 
chief  by  tho  Commonwealth,  said :  "I  think  ho  made  it  after 
the  hearing;"  but  on  cross-examination,  the  folloAving  occurred: 


'1) 


. 


1 


!: 


!| 


I  i 


1= 


i 


f 


.ir 


394 


AMERICAN  CRIMINAL  REPORTS. 


**Q.  The  Commonwealth  had  rested  its  case?  A.  We  callcil 
all  the  witnesses  that  were  subpojnaed.  Q.  That  yon  had  'i  A, 
Yes,  sir.  Q.  Then  yon  snddenly  discovered  yon  had  anothir 
witness?  A.  Xo,  sir;  he  volunteered  this  statement  himself. 
Q.  Then  you  discovered  you  had  another  witness?  A.  Well, 
yes;  after  we  heard  this  statement."  If  the  hearing  was  imt 
over,  the  silence  of  Zoramlx)  and  his  failure  to  deny  Lenouskv's 
accusation  coidd  not  be  used  against  him.  While  it  is  true,  ;i.s 
a  rule,  that  when  one  charged  with  a  crime  is  at  full  lilierly 
to  speak,  but  remains  silent  and  makes  no  denial  of  the  accu-^a- 
tion  by  word  or  gesture,  his  silence  is  a  circumstance  t<^)  ha  taken 
into  consideration  by  the  jury,  it  is  equally  true  that  an  accused 
at  a  judicial  inquiry  into  his  guilt  may  liold  his  peace  in  the 
face  of  any  accusation  against  him,  and  his  silence  cannot  l)o 
regarded  as  any,  not  even  the  slightest,  evidence  of  his  guilt. 
Ettingcr  v.  C'o)nmou wealth,  98  Pa.  338;  Underhill's  Criniiiinl 
Evidence,  §12:^;  Wharton's  Criminal  Evidence,  §(580;  Com- 
monu'callh  v.  Kcnncy,  12  Mete.  23'),  46  Am.  Dec.  072.  As- 
suming, as  the  learned  trial  judge  did,  that  the  hearing,  as  a 
matter  of  fact,  was  over,  and  that  the  otticers  of  the  law  wlm 
were  ]iresent  so  understood  the  situation,  and  felt  there  win 
nothing  more  for  the  magistrate  to  do  but  to  commit  the  jiriso'i- 
ers,  the  question  to  l)e  determined  in  deciding  whether  Zoranib  Ts 
silence  under  the  accusation  of  Lenousky  ought  to  have  been  lei  I 
to  the  jury  as  a  circumstance  against  him,  is,  did  he  knovv-  llic 
heariiig  was  over,  or  had  be  reason  to.  believe  that  the  judicial 
inquiry  was  still  going  on  ?  If  to  him  the  proceedings  Ix^fore  the 
magistrate  had  not  ended,  but  were  apparently  still  in  progress, 
no  tongue  that  he  could  understand  having  told  him  they  were 
over,  he  could  be  silent  before  his  accuser,  and  his  silence  could 
no  more  be  afterwards  used  against  him  than  if  he  had  been 
silent  when  the  hearing  liad  l)een  actually  taking  place.  In  the 
absence  of  proof  that  be  knew  it  was  ever,  the  only  fair  con- 
clusion to  ho.  drawn  which  is  consistent  with  his  rights  is  that 
he  must  have  tlnuight  it  was  still  going  on.  It  is  to  be  assunu'd 
that  though  a  foreigner,  speaking  and  understanding  a  strange 
language,  he  knew  he  was  taken  witli  Lenousky  Ix'fore  the 
magistrate  for  a  hearing.  It  is  further  to  be  assumed  that, 
excejit  when  witnesses  not  understanding  English  were  being  ex- 
amined, the  proceedings  were  conducted  in  tliat  language,  of 
which  he  knew  nothing.     He  was  not  represented  by  counsel, 


.'r^ 


JCOIl    loll 
I. 


COMMONWEALTH  r.  ZORAMBO. 


395 


who  iiii,i>Iit  have  explained  everything  to  him.  When  Lenousky 
iiisistc*!  upon  making  a  statement,  not  a  word  was  spoken  to 
him  iiidiciting  that  the  hearing  was  over;  on  the  contrary,  just 
as  ill!  prior  witnesses  had  hecn  sworn,  so  an  oath  or  affirmation 
was  aduiinisterod  to  Lenousky,  and,  to  all  appearances,  to  the 
prisiiHf  I',  who  nnderi?tood  only  \\hi\t  he  saw,  the  hoarin,<>'  was 
still  pn.<'('C(ling.  The  scene  had  not  changed,  and  was  calculated 
1(1  prddiicc  on  his  mind  the  same  influence  at  the  end  as  had 
cxistpd  all  through.  Commonwealth  v.  Harmon,  4  l*a.  209. 
llul  a  moment  must  have  intervened  hetween  the  examination  of 
I  lie  last  witness  formally  called  by  the  prosecution  and  tlu;  niak- 
iiiir  (if  the  statement  by  Lenousky,  which  was  not  addressed  to 
Zdnimlio,  hut  made  to  the  magistrate,  and,  in  that  brief"  interval, 
ZiiiiimiImi,  through  fiie  interpreter,  heard  and  understood  the 
warning  given  by  the  C'onwnonwealth's  officer  to  Lenousky  not 
to  speak,  which  it  can  hardly  l)c  seriously  contended  he  ought 
ndt  to  have  regarded  as  applying  to  himself  as  well,  lie  knew 
fmiii  \\w  lips  of  authority  that,  if  he  spoke,  whatever  he  said 
iiiitilit  he  used  against  him  on  his  trial  for  his  life,  and  he  heard 
tlie  caution  not  to  speak.  That  he  kept  silent  was  his  right  as 
at  the  time  he  must  have  understood  it,  and  manifest  error 
was  ('(inniiitted  in  submitting  liis  silence  to  the  jury  as  cir- 
cniiistantiid  evidence  against  him. 

'i'hat  the  prisoner,  on  the  day  following  the  hearing,  declared 
Lcnousky's  statement  to  be  untrue,  is  urged  as  a  rca^on  why  it 
was  properly  admitted  in  evidence,  because  it  showed  what  he 
had  denied.  The  answer  to  this  is  that  Zorand)o's  denial  of  the 
truth  of  Lcnousky's  statement  was  consistent  with  his  inno- 
cence; iind,  if  simply  because  he  denied  Avhat  had  been  charged 
against  him,  the  Commonwealth  ought  to  be  allowed  to  oifcr 
ill  evidence  the  statement  as  to  what  he  had  denied,  an  ex  parte 
allidavit  of  the  most  seriitus  import,  containing  tiie  gravest  accu- 
sation aiifl  imperiling  his  life,  wonld  practically  become  evi- 
dence against  him,  for  it  wonld  naturally  bo  so  considered  by 
the  jury,  and  the  accused  would  be  denied  the  right  guaranteed 
liini  of  meeting  his  witnesses  "face  to  face"  (Declaration  of 
Rights,  art.  1,  I?*.)),  and  of  having  his  counsel  cross-examine 
tlu!  iiccusing  witness  in  his  ])resence.  llowscr  v.  Commonwealth, 
r»l  I'll.  'Mi'2.  Lenousky  was  in  court  during  the  trial,  and  could 
liav(!  Ik'cii  called  by  the  Commonwealth  to  lx;ar  witness  against 
the  accused  "face  to  face,"  if  he  knew  anything  that  the  jury 


-  A 


)  ■: 


■'   i    1 


iMi 


i'li 


396 


AMERICAN  CRIMINAL  REPORTS. 


ought  to  have  known  from  him  connecting  the  accused  with  the 
crime  charged.  Neither  an  ex  parte  affidavit  nor  a  deposition 
regularly  taken  can  be  substituted  with  us  for  tes'timony  "face 
to  face"  in  any  criminal  prosecution;  and  the  successful  at- 
tempt of  the  Conunonwealth  to  do  so  in  the  present  case,  in 
which  a  human  life  is  involved,  calls  for  a  reversal  of  the  judg- 
ment. 

Judgment  reversed,  and  a  venire  facias  dc  novo  awarded. 

Note. — Under  what  conditions  or  circumstances  silence  may  be  con- 
sidered an  admission  of  guilt  will  be  considered  in  the  next  volume. 


McDonald  v.  State. 

78  Miss.  369—29  So.  Ren.  171. 

Decided  Jan.  14.  1901. 

Homicide:  Instructions — Practice — Erroneous  instruction  a-,  to  momen- 
tary design  to  kill — Correct,  hut  misleading  instructions — Practice 
as  to  change  of  venue. 

1.  An  instruction  treating  on  the  offense  of  murder,  chargiua;  that  a 

design  to  kill  existing  but  for  a  moment  "at  the  very  tiniG  the 
fatal  blow  was  struck,  was  sufficient"  to  constitute  the  offense  of 
murder,  is  erroneous.  In  that  it  excludes  the  idea  of  heat  of  passion 
or  sudden  provocation. 

2.  In  drafting  instructions,   prosecutors    should  not  strain  legal  ten 

siou,  so  as  to  artfully  prejudice  defendant's  rights,  by  sailing  close 
to  the  danger  line  while  .itating  abstract  propositions  of  law  cor- 
rectly. Instructions  should  state  the  law  clearly,  and  so  as  not 
to  Invade  the  defendant's  rights. 

3.  Although  the  statute  requires  that  on  change  of  venue  the  transcript 

shall  be  forwarded,  sealed  up,  by  special  messenger,  or  delivered 
by  the  clerk  himself,  evidence  that  it  was  received  through  the 
mail  does  not  negative  the  idea  that  it  was  forwarded  by  special 
messenger;  also,  held,  that  the  matter  is  not  jurisdictional.  The 
Court  intimates  that  the  statute  is  merely  directory;  but  leaves 
the  matter  an  open  question. 

Appeal  from  the  Circuit  Court,  Union  County;  Hon.  Z.  ^I. 
Stepluns,  Judge. 

Jatnes  ^McDonald,  convicted  of  murder,  appeals.     Keversed. 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


Mcdonald  v.  state. 


S97 


It  is  assigned  for  error,  that  there  was  no  legal  copy  of  the 
indictment  in  the  Circuit  Conrt  of  Union  County  and  no  evi- 
dence as  required  by  law  (Section  1412,  Code  1892)  that  the 
co])y  on  whicli  the  trial  was  had  was  properly  transmitted  to 
the  trial  court.  The  statute  re(iuire3  the  transcript  of  record, 
upon  change  of  venue,  to  be  forwarded,  sealed  up,  by  a  special 
nu'sscnger,  or  delivered  by  the  clerk  himself.  The  clerk  of  the 
trial  court  testified  that  the  transcrijjt  came  to  him  through  the 
mail,  the  manner  of  forwarding  it  was  shown  by  the  clerk  of 
Denton  County.  The  following  a])]K'ared  in  the  record:  ''This 
day  came  the  district  attorney,  wlio  prosecutes  for  the  State. 
Came  also  the  defendant,  James  ^IcDonald,  in  his  o^ni  proper 
])er.<()ii,  and  represented  by  counsel,  and  in  open  conrt,  at  the 
bar  tliereof.  And  it  appearing  that  the  venu<!  in  this  case  has 
k'cn  rdiioved  from  Denton  County  to  Union  County,  and  it 
aj)pcai'iiig  to  the  satisfaction  of  the  Court  that  the  (^ircuit  Clerk 
(f  IJeiilnu  County,  ^lississi])])!,  has  made  out  a  transcript  of 
the  cajition  of  the  record  in  said  ease,  also  the  proceedings  im- 
pancHn.ii  the  grand  jury,  of  the  indietment,  Avith  the  entries  and 
indorsements  thereon  and  all  entries  relative  thereto  in  the 
record  of  his  oiKcc,  of  the  bonds  and  recognizances  of  the  de- 
fendant, of  the  names  of  all  the  witness(>s,  and  of  all  orders, 
juilgments,  and  other  papers  and  proceetlings  belonging  to  or 
had  in  >aiil  cause,  and  has  attached  his  certificate  thereto,  under 
his  hand,  and  with  the  seal  of  the  court  annexed,  and  has  for- 
warded it,  seale<l  up,  as  re(piired  by  law,  together  with  all  the 
original  sul)i)oenas  in  the  case,  to  the  clerk  of  this  Court  to 
which  the  trial  has  been  ordered  to  be  removed,  on  motion  of 
the  di'irndant  the  Court  ordered  a  sjuicial  venire.     .     .     ." 

The  Court  gave  the  following  instruction: 

"The  ( 'ourt  instructs  you,  for  the  State,  that,  while  pre- 
meditation and  nuilice  aforethought  are  necessary  ingre<lients 
in  the  crime  of  murder,  this  does  not  mean  hatred  or  ill  will, 
lait  means  the  same  in  law  as  dcdiberate  design,  and  need  not 
exist  ill  the  mind  of  the  slayer  for  any  deiinite  time, — not  for 
days  or  hours,  or  even  minutes;  but,  if  the  design  to  kill  exists 
but  for  an  instant  at  the  very  time  the  fatal  blow  Avas  struck, 
this  is  sutlieient  premeditation  to  constitute  the  offense." 

Mayes  lO  Harris,  for  the  appellant. 

Monroe  McCliirg,  Attorney  General,  for  the  State. 


^'1' 


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1) 

'Mi 


398 


AMERICAN  CRIMINAL  REPORTS. 


Whitfield,  C.  J.  The  second  instruction  given  for  the 
State  is-  fatally  erroneous.  The  words  ^*the  offense,"  in  the 
instruction,  mean  murder;  and  the  effect  of  the  instruction  is 
to  tell  the  jury  that,  if  "the  design  to  kill"  existed  but  an  in- 
stant at  the  very  time  the  fatal  blow  was  struck,  the  a])i)('llaiit 
was  jit'uilty  of  murder.  Now,  manifestly,  the  design  to  kill 
might  exist,  and  the  killing  be  merely  manslaughter.  Tliis 
instruction  pares  away  the  rights  of  defendant,  and  r((iuires  the 
jury  to  convict  of  murder,  no  matter  what  the  provocation,  and 
even  tlnuigh  the  killing  was  done  in  the  heat  of  passion  and  on 
suddeJi  provocation.  Its  vice  is,  it  eliminates  manslaughter  !H  n 
possible  finding  from  the  case,  if  only  the  design  to  kill  existe.l 
as  stated,  etc.  The  case  cited  to  uphold  the  instruction  is  Ilair- 
thorne's  Case,  58  Miss.  778.  But  the  instruction  there  (i)ag(s 
779,  780)  had  the  necessary  qualification  absent  here, — "unless 
the  jury  believe  from  all  the  evidence  in  the  case  that  the  kill- 
ing was  manslaughter  or  was  done  in  necessary  self-defense." 

We  have  often  said,  and  we  again  repeat  it,  that  if  district 
attorneys  would  not  attempt  to  charge  defendants  into  the  peni- 
tentiary by  paring  away,  by  instructions  strained  to  the  last 
point  of  legal  tension,  the  rights  of  the  defendants,  they  wuuld 
not  only  secure  as  many  convictions,  but  convictions  not  re- 
quiring to  be  set  aside.  We  cannot  too  earnestly  conunend  to 
district  attorneys  the  wisdom  of  this  course.  Is  it  iu>t  far 
wiser  to  state  the  law  in  a  few — a  very  few — instnietions, 
stating  the  law  clearly,  and  surely  within  the  defendant's  rights, 
than  to  attempt  the  solution  of  the  problem  how  near  the  State 
may  go,  in  its  instructions,  to  fatal  error,  Avithout  erring^ 
Surely  it  is,  and  this  instruction  is  a  striking  example  of  the 
unwisdom  of  the  latter  course. 

We  do  not  think  the  testimony  of  the  clerk  overcomes  the 
legal  presumption  that  the  clerk  of  Benton  (\3unty  did  forward 
the  transcript  by  special  messenger,  as  required  by  law.  For  all 
the  clerk  says,  the  clerk  of  Benton  County  might  have  delivered 
the  transcript  to  a  special  messenger.  There  is  no  euinj)laint 
that  there  was  any  defect  in  tie  transcript,  within  the  meaning 
of  section  1413,  (^ode  1S92.  Xo  objection  is  made  to  the  tran- 
script, which  is  duly  certified  by  the  clerk  of  Benton  County. 
It  is  not  pretended  that  the  appellant  was  not  tried  on  a  copy 
of  the  indictment,  and  an  accurate  copy.  The  sole  point  is, 
precisely,  that  the  manner  in  which  the  transfer  of  the  record 


WOOD  17.  STATE. 


399 


was  oflfectcd  is  jurisdictional,  and  must  appear  affirmatively  of 
rocortl.  We  think,  as  stated!  that  it  does  atfirmatively  appear, 
and  that  tlio  testimony  of  the  Circuit  Clerk  of  Union  County 
tliat  it  "came  to  his  hands  by  mail''  does  not  necessarily  nega- 
tive the  idea  that  the  Circuit  Clerk  of  Benton  County  did  for- 
ward it  by  special  messenger.  It  is  not  necessary  to  decide  the 
precise  alleged  jurisdictional  point,  and  we  leave  it  open,  with 
the  statement,  however,  that  we  are  strongly  inclined  to  the  view 
that  the  manner  of  the  transfer  is  merely  directory,  and  that  the 
jurisdiction  of  the  Circuit  Court  of  the  county  to  which  the 
viniiie  has  been  changed  attaches  when  the  duly-certifted  tran- 
script is  filed  therein.  If  it  be  not  a  correct  transcript,  section 
in. J,  Code  1802,  applies,  and  it  can  be  perfected.  If  no  point 
is  made  on  the  transcript,  and,  as  here,  only  uu  the  manner  of 
the  transfer,  wo  are  inclined  strongly  to  hold  that  that  is  not 
jurisdictional, 
litversed  and  remanded. 


Wood  v.  State. 

81  Miss.  408—33  So.  Rep.  285. 

Decide;!  Jan.  19.  1903. 

Homicide:    Instructions  not  applicable  to  the  evidence — Specific  intent 

— yot  recklessness. 

1.  An  instruction  stating  the  law  correctly,  but  not  applicable  to  the 

facts,  may  be  reversible  error. 

2.  The  evidence  showing  that  the  fatal  shot  was  fired  with  the  inten- 

tion to  strike  a  particular  person,  it  was  reversible  error  to  In- 
Ktruct  the  jury  "that  the  killing  of  a  human  being  without  au- 
thority of  law,  when  done  in  the  commission  of  an  act  eminently 
dangerous  to  others,  and  evincing  a  depraveil  heart,  regardless 
of  human  life,  although  without  any  premeditated  design,  to 
effect  the  death  of  any  particular  individual,  is  murder. 

3.  Where  the  defendant  fired  the  fatal  shot,  during  an  assault  made 

by  several  persons,  it  is  error,  in  an  instruction,  to  narrow  the 
question  of  danger,  to  danger  from  the  deceased. 

Appeal  from  the  Circuit  Court,  Lincoln  County ;  Hon.  Rob- 
ert Powell,  Judge. 

For  rases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
tins  volume. 


H    ! 


mm 


!|   h 


\     it'] 


400 


AMERICAN  CRIMINAL  REPORTS. 


George  W.  Wood,  convicted  of  niuvder,  appeals.     Tvcvcr-u  tl. 

The  defendant  (in  the  court  below)  and  his  brother  were 
proprietors  of  a  traveling  show  and  on  the  day  of  the  honiicido 
January  14,  1902,  were  giving  an  entertainment  in  Lincnlu 
Count}'. 

The  evidence  on  part  of  the  State,  was  that  defendant,  comiiii; 
out  of  the  tent,  said  something  to  several  boys  on  a  ■wagon  near 
the  tent,  and  in  an  altercation  with  Albert  Landjert,  struck  and 
knocked  him  (jff  of  the  wagon  ;  that  Landiert  then  jerked  a  picket 
from  the  fence  and  the  defendant  ran  back  into  the  tent,  raised 
the  curtain  and  said:  "I  will  stop  some  of  the  damned  son^^  ui 
bitches,"  and  then  fired  twice,  one  of  the  shots  mortally  wmiuil- 
ing  Xellierland,  Avho  was  a  bystander  not  i)articipating  in  (he 
disturbance. 

The  evidence  for  the  defense  was,  that  the  lx)ys  on  the  watinu 
were  lodking  into  the  show  through  a  hole  near  the  top  (if  I  ho 
tent  and  that  tlie  dt fondant's  motlier  went  out  and  in  reuinn- 
strating  with  them  t(dd  them  to  pay,  and  come  inside  like  pu- 
tlemen  and  pvt  the  value  of  their  nn)ney;  tluvt  one  of  them  in- 
sulted her,  when  defendant  came  out  and  had  a  vile  epiilut 
applied  to  him  by  one  of  them;  that  he  asked  who  it  was;  that 
Landjert  said  that  he  was  the  one;  that  defendant  knock(>(l  Iiim 
from  the  wagon  ;  that  Lambert  got  the  ])icket  and  started  towai'ij 
defendant,  several  others  having  knives  and  all  pursning  de- 
fendant to  tiie  tent,  and  that  as  Xetherland  raised  the  eurlaiu 
to  enter  he  was  shot  by  the  defendant. 

Other  facts  appear  in  the  opinion. 

A.  C.  McXair  and  G.  G.  Lycll,  for  the  appellant. 

WiUiam  Williams,  Assistant  Attorney  General,  for  the  State. 

WiiiTFiioi.i).  r.  J.  It  was  manifest  error  on  this  record  to  ijivc 
the  foui'lh  anil  ninth  instructions  for  the  State. 

The  fourtli  instruction  is  in  the  following  words:  "The  court 
instructs  the  jury  that  the  killing  of  a  hunuui  being  witlmut 
authority  of  law,  when  done  in  the  commission  of  an  act  emi- 
nently (hingerous  t(j  others,  and  evincing  a  depraved  heart,  re- 
gardless of  human  lif",  although  without  any  ])remeditate(l  de- 
sign to  effect  the  death  of  any  i)artieular  individual,  is  nuirder." 
This  is  erroneous  and  misleading  on  the  facts  in  this  ease,  be- 
cause it  is  manifest  from  the  testimony  for  the  State  as  well  as 


WOOD  V.  STATE. 


401 


for  the  defense  that  Wood  did  not  fire  recklessly  and  wafitonly 
with  the  view  of  killing?  anybody  in  utter  disregard  of  human 
life,  but  he  did  fire  with  the  specific  purpose  of  killing  some 
specific  person,  to-wit,  sonic  one  of  the  group  headed  by  Lam- 
bert, with  which  group  he  had  Ixjen  in  conflict,  and  -which, 
according  to  the  evidence  for  the  defense,  was  still  pursuing 
him, — Lambert  certainly.  The  evidence  for  the  State,  which 
iiliows  that  he  shot  with  a  specific  purpose  to  kill  some  one  of 
that  group,  is  contained  in  the  language  testified  to  by  the 
State's  witness,  to-wit,  "I  will  stop  some  of  the  damned  .  .  ." 
It  was  not  proper  in  this  case,  where  the  evidence  showed  shoot- 
ing with  specific  intent  to  kill  some  one  of  a  group  of  assailants, 
to  give  this  instruction,  correct  in  the  abstract,  but  applicable 
only  where  the  evidence  shows  a  shooting  with  a  reckless  disre- 
gard (if  life  by  one  of  wanton  and  dei)raved  mind ;  not  with  spe- 
cific purpose  to  kill  some  assailant,  but  with  utter  recklessness 
as  to  who  might  bo  killed.  The  vice  of  this  instruction  in  such 
a  case  is  set  in  very  clear  light  in  the  very  accurate  opinion  of 
our  Brother  Tcrral  in  Stricldarid  v.  State  (Miss.)  32  South. 
l»21. 

The  ninth  instruction  for  the  State  is  as  follows :  "The  court 
instructs  the  jury  that,  oven  though  they  may  believe  from  the 
evidence  that  Xethorland  was  going  \mder  the  tent  at  the  time 
he  was  killed,  yet  the  fact  would  not  justify  or  excuse  the  kill- 
ing of  Xetherland,  unless,  of  course,  the  jury  Ix'lievcd  from  the 
evidence  that  a  reasonable  man,  situated  as  Wood  was,  under 
the  circumstances,  would  have  reasonably  believed  that  from 
such  fact  of  Xetherland's  coming  into  the  tent  his  life  was  in 
danger,  or  he  was  in  danger  of  great  bodily  harm  at  the  hands 
of  Xetherland;  and  that  to  slay  Xetherland  was  necessary  to 
protect  his  own  life  or  his  person  from  injury  at  the  hands  of 
Xetherland."  The  vice  in  this  instruction  is  this:  that  it  nar- 
rows the  defendant's  right  entirely  too  much,  in  testing  his  guilt 
in  the  killing  of  X'etherland,  by  what  occurred  between  him 
and  Xetherland  only,  without  having  any  reference  to  the  other 
theory  presented  by  the  evidence  for  the  defense  that  he  shot 
Xetherland  supposing  him  to  be  one  of  the  attacking  group. 
Of  course,  on  the  State's  testimony,  he  had  no  right  to  shoot 
Xetherland  at  all.  On  the  State's  evidence — if  that  was  the 
only  evidence  in  the  case — he  would  be  plainly  guilty  of  mur- 
der, for  on  that  evidence  he  shot  at  Xetherland  deliberately 

Vol.    XIII— 26 


■mi 


■tr 


u 


402 


AMERICAN  CRIMINAL  REPORTS. 


with  his  back  turned  to  him,  whilst  Nethcrland  was  doing 
nothing  in  the  world  but  standing  some  distance  from  the  tent, 
holding  his  four  year  old  son  by  the  hand.  But  the  testimony 
for  the  defense  by  several  witnesses  is  that  Netherland  was  in 
the  act  of  raising  the  side  curtain  of  the  tent  and  going  into  tho 
cutoff  space,  where  the  Punch  and  Judy  show  was  to  be  given, 
and  in  which  space  Wood  was  standing. 

The  defense  introduced  the  doctor  in  the  case,  from  whose 
testimony  some  strength  was  sought  to  be  given  to  the  view 
that  Netherland  was  shot  whilst  in  a  stooping  position,  and  tliat 
being  shot  in  this  manner  accounted  for  the  downward  viuigc 
of  the  ball.  The  doctor  testified  that  the  range  of  the  ball  was 
do^vnward,  but  he  also  says  that  it  struck  the  shoulder  almost 
on  a  level,  and  then  ranged  a  little  down.  If  it  was  true  that 
the  appellant  shot  Xctherland,  who  was  an  entire  stranger  to 
him,  and  against  whom  he  had  no  malice,  supposing  him  to  bo 
one  of  the  group  with  which  he  had  had  a  controversy  alxiiit 
five  minutes  before,  and  that  that  group  was  still  pursuing  him, 
or  that  Lambert,  one  of  the  group,  was  still  pursuing  him,  it 
must  be  obvious  that  this  instruction  shut  out  too  rigidly  and 
narrowly  all  that  had  preceded,  and,  according  to  the  testim<iny 
of  the  defense,  what  was  then  going  on  between  Wood  and  Lam- 
bert, and  confined  the  jury  in  determining  the  question  of  his 
guilt  to  what  occurred  between  him  and  Netherland  alone,  witli 
whom  he  had  no  quarrel.  Wo  think  this  instruction  was  highly 
prejudicial  on  the  facts  of  this  case. 

Keversed  and  remanded. 


Gee  v.  Static. 

80  Mls3.  285—31  So.  Rep.  792. 

Decided  April  7th,  1902. 

Homicide:     Presumption  of  malice  from  the  use  of  a  deadly  weapon- 
Identification   through   voice — Misleading   instruction. 

In  a  murder  case,  where  the  sole  Inquiry  Is  as  to  the  Identity  cf 
the  guilty  party.  An  Instruction  to  the  effect  that  when  the  kill- 
ing by  defendant  with  a  deadly  weapon  ha3  been  proved  beyond 
a  reasonable  doubt,  the  law  will  presume  the  malice  requisite  to 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


I;'''i  I', 


GEE  V.  STATE. 


403 


constitute  murder,  Is  misleading,  as  intimating  that  defendant 
(lid  the  killing. 
"Identification  by  recognition  of  voice  is  enough  if  it  is  perfectly 
clear  and  what  is  said  amounts  to  confession." 

Ajipcal  from  Circuit  Court.  Bolivar  County.  Hon.  Frank 
A.  Larkin,  Judge. 

fjcsse  Gee,  convicted  of  murder,  appeals.     Keversed. 

.Jesse  Gee,  appellant,  was  indicted  for  the  murder  of  one 
Taylor  Nicliolson,  in  Octol)er,  1001.  lie  was  tried,  convicted, 
and  sentenced  to  death,  froni  which  cc  .v^iction  and  sentence  he 
apiK'aled  to  the  Supreme  (^ourt. 

On  the  trial  the  State's  evidence  showed  that  appellant  had 
been  intimate  with  a  woman,  Lucy  !McKeever,  before  his  mar- 
riage to  another  woman.  After  appellant  married,  Xicholson, 
the  deceased,  took  up  with  laicy,  and  was  visiting  her.  On  the 
night  of  the  killing  Gee  was  at  Lucy's  house,  and  a  short  time 
after  he  left  a  pistol  was  heard  near  the  gallery  of  the  house 
and  Lucy  and  her  mother,  wjio  were  in  the  house,  testified  that 
Geo  ran  around  the  house,  and  said:  "If  you  tell  this  in  forty 
years,  I  will  kill  you."  It  was  also  shown  that  appellant  had 
exchanged  a  g\\n  for  a  pistol  a  short  time  before  the  killing. 
There  was  no  eye-witness  to  the  killing.  Nicholson  Avas  found 
(lead  near  the  doorsteps  of  Lucy  IMeKeever's  house  the  next 
niorniiig  after  the  Avitnesses  heard  the  pistol  shot. 

The  instruction  Xo.  2  for  the  State,  referred  to  in  the  opinion 
of  the  court,  is  as  follows: 

''The  court  instructs  the  jury  that  every  homicide  is  pre- 
sumed in  law  to  ho  malicious,  and  therefore  murder;  and,  when 
the  killing  by  defendant  with  a  deadly  weapon  has  been  proved 
by  the  evidence  beyond  a  reasonable  doubt,  the  law  will  presume 
the  malice  rcpiisite  to  constitute  murder,  and  it  is  then  in- 
eunilK'nt  upon  the  defendant  to  show  some  circumstances  of 
justification,  alleviation,  or  excuse,  unless  these  arise  out  of 
the  evidence  adduced  against  him." 

Defendant's  motion  for  a  new  trial  was  overruled,  and  he 
appealed. 

F.  A.  Montgomery,  for  the  appellant. 

Monroe  McClurg,  Attorney  General,  for  the  State. 

Wjiitfield,  C.  J.  We  are  not  satisfied  Avith  the  second  in- 
struction for  the  State,  as  applied  to  the  facts  of  this  case.    It 


'.  « i 


. 


\il 


404 


AMERICAN  CRIMINAL  REPORTS. 


is  too  broad.  The  main  inquiry  was  to  the  identity  (if  tho 
shiyer,  and  the  proof  of  identity  is  extremely  meager.  Identili- 
cation  by  recognition  of  voice  is*  enough,  if  it  be  perfectly  clciir, 
and  what  is  said  amoimts  to  confession.  The  testinjony  is  very 
scant  on  these  points  in  this  case.  In  this  close  case  we  think 
the  jury  may  have  been  misled  by  this  charge.  It  docs  imt, 
like  the  charge  in  Bishop's  Case,  (52  Miss.  289,  say  that,  "if  the 
jury  believe  beyond  a  reasonable  doubt  that  defendant  shot  ami 
killed  deceased,  and  did  not  have  reasonable  ground  to  appre- 
hend death  or  great  bodily  harm  at  the  hands  of  the  deceased," 
I'tc.,  "then,"  etc.  This  was  not  a  case  wherein  circumstances  (jf 
(■xcuse  or  justification  were  shown  by  either  side.  Indeed,  tlie 
circumstances  of  the  killing  are  wholly  unknown,  except  as  to 
the  weapon  supposed  to  have  been  used.  Who  killed  the  de- 
ceased ?  was  the  question.  In  all  three  of  the  cases  cited  l)y 
the  State — Bishop  v.  Stale,  02  !Miss.  289,  Hnwihornc  v.  Slalc, 
oH  Miss.  778,  and  McDanicl  v.  State,  8  Smedes  &  M.  401,  17 
Am.  Dec.  93 — there  was  no  doubt  as  to  who  did  the  killing.  W(; 
think  the  language  of  this  instruction,  under  the  peculiar  facts 
of  this  case,  may  well  have  been  uiulerstood  by  the  jury  as 
intimating  that  the  defendant  did  the  killing,  when  that  very 
fact  was  the  j)ivotal  one  in  the  case ;  and  in  this  view  the  charge 
is  clearly  error. 

Reversed  and  remanded. 


Raines  v.  State. 


81  Miss.  489—33  So.  Rep.  19. 

Decided  Dec.  1.  1902. 

Homicide — Tbial — Impbopeu  Evidence — Instbictions:  Duty  of  presid- 
ing judge  in  case  of  applause  from  the  audience — PrejwUcinl 
evidence  not  bearing  on  the  main  issue — Erroneous  instruction  as 
to  presumptions  arising  from  the  use  of  a  deadly  weapon — Mere 
killing  does  not  import  malice — Cross  examination  of  witness. 

1.  Upon  applause  from  the  audience  at  the  close  of  the  prosecutor's 
argument  it  was  not  only  the  duty  of  the  presiding  judge  to  repri- 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


RAINES  V.  STATE. 


405 


mand  the  dlaturbers  and  forbid  Ita  repetition,  but  should  have 
admonished  the  Jury  not  to  be  influenced  by  It. 

2.  On  a  charge  of  wife  murder  where  the  evidence  was  entirely  cir- 

cumstantial, and  the  defense  claimed  the  killing  to  liuvu  been 
accidental,  it  was  error  to  show:  frequent  beatings,  cursing,  etc., 
by  accused  of  his  wife  covering  a  period  of  ten  years;  that  he 
had  threatened  to  get  u  divorce  because  his  wife  would  not  dresa 
up;  marks  of  shot  hole.-j  In  walls  of  defendant's  residence, — such 
evidence  not  being  connected  with,  and  not  being  a  link  as  to  the 
chain  of  facts  in,  and  not  furnishing  proof  of  a  motive  as  to  the 
murder  charged. 

3.  It  was  error  on  cross  examination  of  one  of  defendant's  witnesses 

to  inquire  whether  the  defendant  had  not  made  a  statement  to 
the  witness  Indicating  hla  guilt;  and  then  upon  denial  by  such 
witness,  to  allow  proof  that  the  witness  had  previously  so  stated. 

4.  It  is  not  the  more  killing,  but  the  deliberate  killing  by  the  use  of 

a  deadly  weapon  that  Imports  malice. 
G.  Under  the  evidence,  It  was  error  to  charge  the  jury  that  one  la 
presumed  to  Intend  what  he  does,  and  that  malice  may  be  In- 
ferred from  the  use  of  a  deadly  weapon;  whether  the  shot  was 
fired  Intentionally  or  by  accident  should  have  been  left  to  the 
jury,  uncontrolled  by  presumptions  declared  in  the  instructions. 

Appoiil  from  the  Circuit  Court  of  Lee  County;   llou.  E.  O. 
Sikfs,  ,Ju(lf>('. 
Dan  Kainos,  convicted  of  wife  murder,  appeals.    Reversed. 

Anderson  iC  Lowj,  for  the  appellant. 

William  Williams,  Assistant  Attorney  General,  for  the  State. 

Tkuuai.,  J.  The  appellant,  ho'uip;  sentenced  to  the  peniten- 
tiary for  life  upon  a  conviction  of  the  nmrder  of  his  wife,  pre- 
sents here  many  objections  to  the  proceedings  against  him  in 
the  trial  court.  For  a  proper  understanding  of  these  objections, 
a  brief  statement  of  the  matters  objected  to  will  Ix;  necessary. 

The  record  recites:  "Immediately  upon  the  conclusion  of  the 
nrguiueut  for  the  prosecution,  the  audience  began  a  demonstra- 
tion of  aj)plause,  which  was  immediiitely  cheeked  by  the  court 
l)y  rapping  on  the  table.  The  audi(Mice  was  reprinuuided  for  it, 
and  the  court  stated  that  there  nuist  be  no  further  demonstration 
of  any  kind  during  the  progress  of  this  trial.  There  was  a  large 
crowd  in  the  courtr(H)m." 

The  record  disclosed  that  there  was  no  eye-witness  to  the  kill- 
ing.    The  evidence  of  it  was  entirely  circumstantial,  and  the 


406 


AMERICAN  CRIMINAL  REPORTS. 


\  *' 


!ii>ii 


proof  on  tlio  part  of  tlio  state  was  substantially  made  by  tlio 
sheriff  of  the  county,  who  testified  that  the  defendant  tohl  him 
of  the  killing, — "just  ^it'id  to  nie  it  was  an  awful  tiling' ;  lie 
would  not  have  had  it  to  happen  for  the  world ;  and  that  it  wns 
on  accident."  Bill  Johnson  tcstiKed  that  ho  lived  at  Kaiiics' 
four  years ;  worked  there  five  years,  and  commenced  workiiifi:  t'nr 
him  at  his  mill  ten  years  ago;  antl,  all  the  time  he  was  tlicro, 
Raines  treated  his  wife  pretty  rough, — (nirsed  her,  heat  he:', 
whij)|H'd  hi'r,  and  caused  her  a  miscarriage;  that  Haines  tried 
to  make  witness'  horse  jump  on  her  in  the  entry;  g»»t  on  her 
with  one  knee;  pulled  her  hair;  slai)pe(l  her;  pulled  her  Udse 
and  oars, — and  nmeli  more  of  like  conduct,  which  witness  siiid 
continued  through  the  ten  years  he  was  acquainted  with  them. 
Charles  ^lathews  testified  that,  twd  or  three  weeks  befor"  'li.- 
killing,  he  heard  the  defendant  say  to  his  wife  that  he  was  gdiiig 
to  get  a  divorc^^  from  her  because  she  would  not  dress  uj).  Susnii 
Duncan  testified  that  Jvaines  made  tlireats  against  his  son,  iunl 
added  he  l)elieved  his  mannny  was  upholding  his  son  in  wluit 
ho  objected  to  in  him.  Other  similar  evidence  was  offered  iiiid 
laid  before  the  jury,  all  against  the  earnest  objection  of  coun>el 
for  appellant.  One  Lafayette  Haines,  a  witness  for  the  de- 
fendant, was,  up(m  cross-examination,  asked  if  the  defendant 
had  not  made  to  him  a  statement  In'aring  some  implication  of 
guilt,  which  he  denied,  and  yet  Sam  Kelly  was  allowed  to  prove 
that  Lafayette  Ilaint^s  had  made  such  statement;  tin  i.  ^^ 
before  the  jury  as  a  confession  of  liaines  whn  n'  jtness  pre- 
tended he  ever  said.  Signs  of  shot  holes  walls  of  tl 
residence  of  lliiines — when  and  by  whom  n.  oeing  unpro\.  .1 
— were  also  given  in  evi<lenco  of  the  gniilt  of  1       'lefon  !;int. 

That  the  misconduct  of  the  audience  or  of  other-  strangers 
to  the  proceeding,  when  done  to  affect  the  result  of  the  case, 
may  infect  it  with  fatal  error,  is  established  by  numy  cases  in 
the  books,  not  necessary  to  here  note.  The  ap|)lause  given  by 
the  audience  at  the  clos(!  of  the  orr.Mon  of  the  prosecuting  coun- 
sel was  intended,  doubtless,  to  influence  the  verdict  of  the  jury, 
and  was  a  gross  breach  of  the  proprieties  of  the  occasion,  and 
an  undisguised  affront  to  the  authority  of  the  court.  In  Cart- 
m-ight  v.  State,  IG  Tex.  App.  473  (49  Am.  Rep.  826),  in  a 
matter  of  applause  by  the  audience  in  like  circumstances,  whieh 
was  not  in  any  way  noticed  by  the  trial  court.  Judge  Wilson 
said:    "We  think  the  court  should  have  taken  prompt  and  de- 


h  tiio 

(I  Iiiiii 

^';   Jic 

tlicro, 

t  her, 

tried 

II  licr 

ll(ISC3 

■sjiid 
"Hiciii. 


RAINES  V.  STATE. 


407 


cisivo  nction  on  the  occasion,  nnd  hIiouM  have  ondcavorod,  by 
its  cnndomnation  of  the  proceeding  and  its  admonition  to  the 
jury,  to  prevent  any  prejudice  to  the  defendant  by  such  i*('])re- 
licnsiblc  condnct."  The  court  in  the  present  case  promptly 
cliccked  tlie  demonstration  and  reprimanded  tlie  audience,  yet 
the  want  of  any  a(hiU)nition  to  the  jury  not  to  suffer  itself  to 
Im'  misled  by  the  ap]>lau8e  of  the  audience  renders  the  point 
made  here  of  tlie  gravest  dithculty.  In  view,  liowever,  of  the 
fact  that  the  judgment  rendered  in  this  case  must  be  set  aside 
f(ir  other  grounds  of  error,  we  have  thought  it  unnecessary  to 
determine  whether  this  unseeudy  incident  is  a  fatal  intirmity  in 
tlie  ease. 

The  record  discloses  that  there  was  no  eyewitness  to  the 
killing  charged  upon  tlie  defendant.  The  evidence  of  it  was 
entirely  circumstantial,  and  the  proof  on  the  j)art  of  the  State 
was  sid)stantially  made  by  the  sheriff  of  the  county,  who  testilied 
that  the  <lefendant  told  him  of  the  killing  of  his  wife, — ''just 
said  to  me  it  was  an  awful  thing;  ho  would  not  have  had  it  to 
happen  for  the  world ;  and  that  it  was  an  accident."  All  the 
further  proof  in  the  ease  on  the  part  of  the  State  was  in  tlio 
effort  to  show  the  killing  was  not  accidental,  but  was  purposely 
and  willfully  done.  The  proof  is  partly  noticed  above,  iind 
consisted  of  nmny  separate  and  distinct  beatings  or  cursings  of 
ilrs.  Haines,  connnitted  at  various  times,  running  back  many 
years,  of  one  instance  of  a  tlir(>at  to  get  a  divorce  from  licr,  and 
of  continuous  unplea.^ant  relations  of  their  married  life.  The 
several  distinct  offenses  proven  against  the  defendant,  as  well 
as  the  repeated  cursings  and  continuous  ill  treatnient  of  his 
wife,  extench  (1  back  before  the  killing,  to  a  period  of  10  years. 
Objection  to  this  species  of  evidence  as  incompetent  and  illegal 
was  made  by  ap|)ellant's  counsel  in  the  court  below,  and  is  re- 
peated to  us  here.  Counsel  for  the  State  insists  on  its  com- 
petency and  applicability,  and  cite  to  us  in  its  support  Webb's 
Case,  73  Miss.  4.'iO  (19  South.  23K),  and  Story's  Case,  08  Miss. 
609  (10  South.  47).  Hut  we  find  that  in  each  of  these  cases 
the  circumstances  put  in  evidence  to  show  a  motive  for  the  kill- 
ing were  n<)t  separate  and  distinct  offenses,  but  were  matters 
that  had  apparent  and  obvious  relation  to  the  murder  charged, 
and  for  which  they  were  on  trial,  and  hapi)ened  in  each  case 
only  a  short  time  before  the  killing.  The  admission  of  the  evi- 
dence in  those  cases  meets  our  entire  concurrence. 


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408 


AMERICAN  CRIMINAL  REPORTS. 


It  is  a  general  rule  of  law  that  the  evidence  must  be  con- 
fined to  the  point  in  issue,  and  that  in  criminal  cases,  especially, 
the  facts  laid  before  the  jury  should  consist  exclusively  of  the 
transaction  which  forms  the  subject  of  the  indictment.  Roscoo, 
C'r.  Ev.  (Oth  Ed.)  85-95;  1  Groenl.  Ev.  pt.  2,  c.  1 ;  Herman  v. 
State,  75  Miss.  340,  345,  (22  South.  873)  ;  Holt  v.  State,  7s 
Miss.  (531  (29  South.  527)  ;  Farvis  v.  People,  129  111.  521  (21 
:N\  E.  821,  4  L.  R.  A.  582,  16  Am.  St.  Kep.  283). 

It  is  only  where  the  previous  crime  is  connected  with  the 
one  for  which  the  defendant  is  on  trial,  and  where  it  shedrt  light 
U])on  the  motive  of  the  accused,  that  it  can  be  proven  ai-aiust 
him,  luiless  it  form  a  part  of  a  chain  of  facts  so  intinuitely  cou- 
neoted  that  the  wliole  must  be  heard  in  order  to  interjtict  its 
several  parts.  Evidence  of  the  conduct  of  the  accused  oii  otlu  r 
occasions,  though  disconnectetl  from  the  olfense  on  trial,  is  fre- 
quently admitted  in  cases  of  conspiracy,  uttering  forced  instru- 
ments and  coimterfeit  coin,  and  receiving  stolen  gcKuls, — n<.t, 
however,  for  the  purpose  of  inducing  the  jury  to  believe  the 
accused  guilty  of  the  crime  for  which  he  is  on  trial,  because  lie 
had  committed  another  similar  crime,  but  for  the  purpose  of 
excluding  him  from  setting  up  the  defense  that  he  diil  tlie  act 
innocently  and  without  knowledge  of  its  guilt.  In  such  east  s 
evidence  of  other  similar  oifenses  is  admissilde,  because  tlie  act 
for  which  the  defendant  is  Ix'ing  tricM  is  mostly  of  an  eiiuivo- 
cal  kind,  from  which  mains  aniinus  is  not  a  necessary  ])resumi)- 
tion;  and  such  evidence  is  allowed  in  order  to  show  a  criminal 
intention.  But  it  is  rare  that  evidence  of  other  similar  oifenses 
is  received  upon  the  trial  of  a  crime.  It  is  true,  no  evidc  nee 
touching  the  guilt  of  the  accused  in  the  particular  case  on  trial, 
of  whatever  sort,  is  rejected  merely  lucause  it  may  discli.se 
another  offense;  but  the  acts  relating  to  other  offenses,  to  be 
admissible,  except  in  the  class  of  cases  above  noted,  or  other 
like  eases,  nuist  be  intiniat(  ly  connected  with  tlu;  otfense  on 
trial,  and  must  afford  reasonable  ground  of  l>elief  of  a  coiuiee- 
tion  between  them.  Hex  v.  Cleires,  4  (\jr.  &  P.  221  (19  E.  ('.  L. 
354) ;  Foster  v.  State,  70  Miss.  75(5,  7<57,  7(58  (12  South.  822). 
In  cases  of  murder,  threats  to  kill,  nuide  recently  before  the 
killing,  or  recent  attempts  to  kill,  are  admissible  in  evi<lence, 
as  tending  to  characterize  the  ease  on  trial.  In  Herman's  Casi', 
75  Miss.  34.'5  (22  tiouth.  873),  a  felonious  assault,  given  in 
evidence  to  show  motive,  was  held  to  be  incompetent,  lx>cause 
it  occurred  nearly  12  months  before  the  homicide. 


RAINES  V.  STATE. 


409 


Wo  are  of  the  opinion  that  the  instances  contained  in  the 
record  of  the  cursings  of  the  deceased  by  the  defendant,  whether 
tiikt'ii  collectively  or  singly,  were  incompetent  as  evidence 
jiHiiiiiHt  the  defendant,  and  were  harmful  and  illegal.  We 
fnrllicr  think  that  the  many  simple  assaults  of  the  deceased  by 
the  (Icfondant,  whether  collectively  or  separately  considered, 
were  incoini)etent  as  evidence  against  the  defendant,  and  were 
Imrtful  and  injurious  to  his  side  of  the  question  then  under  in- 
vestigation by  the  jury ;  that  the  signs  of  shot  holes  in  the  walls 
ol'  (let'cudant's  residence,  when  or  how  done  being  unproven, 
were  wholly  irrelevant;  and  we  are  at  an  utter  loss  to  see  how 
liis  chiding  dcclaraiiun  to  his  wife,  made  while  drinking,  though 
only  thi'ce  weeks  before  the  aw^ful  tragedy,  that  he  would  divorce 
her  l)e(!auae  she  would  not  dress  up,  could  be  put  in  the  balance 
against  the  liberty  and  life  of  the  wretched  defendant.  We 
think  it  was  also  incompetent  to  get  before  the  jury,  as  a  con- 
fession of  the  defendant,  what  Lafayette  Haines  denied  he  had 
said,  by  i)roving  by  Isom  K(>lly  that  Raines  had  made  such 
statement  to  him  as  coming  from  defendant. 

The  third  instructitm  for  the  State,  Avhich  is  based  upon  the 
principle  of  law  that  one  is  jircsumed  to  intend  what  he  does, 
and  the  fourth  instruction,  that  declares  malice  may  be  inferred 
from  the  use  of  a  deaiily  weapon,  are  inapplicable  to  the  facts  of 
this  case.  The  circumstances  relating  to  the  killing  were,  so  far 
as  known,  fully  laid  before  the  jury,  and  should  have  been  left 
to  their  determination  without  the  aid  of  either  of  the  presimip- 
tioiiH  here  invoked.  It  is  not  the  mere  killing,  but  the  deliberate 
killing  by  the  use  of  a  deadly  weapon,  that  imports  malice.  Here 
the  only  debatable  point  before  the  jury  was  whether  the  gun 
was  dcdilK'rately  or  accidentally  tired  by  the  defendant.  And 
the  fourth  instruction  was  erroneous  in  making  the  use  of  the 
gun  decisive  against  the  defendant,  merely  because  it  was  a 
deadly  weapon.  Whether  the  gun  was  accidentally  or  deliber- 
ately tired  was  a  question  which  should  have  been  left  to  the 
fri'c  determination  of  the  jury,  uncontrolled  by  the  presumption 
iin|tused  upon  them. 

For  the  errors  herein  pointed  out,  the  judgment  is  reversed, 
verdict  set  aside,  and  u  new  trial  is  granted.  Eeversed  and 
remanded. 


II 


,   III 


410 


AMERICAN  CRIMINAL  REPORTS. 


m 


Smith  v.  State. 

137  Ala.  22—34  So.  Rep.  396. 

Decided  May  12,  1903. 

Homicide:  Irrelevant  evidence — Cross  examination  of  accused  ai  to 
incompetent  confession — Incompetent  confession  as  impeaching 
evidence — Reasonable  doubt — Misleading  and  argumentative  in- 
structions. 

1.  The  deceased  being  killed  on  a  Thursday,  and  there  being  no  ov'.- 

dence  to  show  that  ho  was  decoyed  to  his  death,  it  wa3  error  to 
show  that  on  the  previous  Sunday  night,  some  unknown  person 
had  knocked  on  the  side  of  the  house  and  left,  and  that  de- 
ceased arose  and  went  cut  to  ceo  who  it  v.as. 

2.  It  was  net  error  to  permit  witness  to  testify,  that  certain  tracks 

at  one  place  indicated  walking  and  at  another  place  running;  such 
testimony  '^eing  descriptiv.  ,•  and  not  opinionative. 
G.  Although   a   confession   has   been   ruled    out,   yet   tlie   same   may 
furnish  a  basis  for  the  cross  examination  and  impeachment  of  the 
defendant  as  a  witness. 

4.  A  reasonable  doubt,  in  order  to  be  ground  to  acquit,  should  not 

be  limited  to  one  part  of  the  evidence;  but  to  the  general  ques- 
tion of  guilt. 

5.  It  is  not  error  to  refuse  an  argumentative  or  misleading  instruc- 

tion. 

6.  "The  jury  Is  not  required  to  pass  on  the  credibility  or  truth  of 

statements  made  by  one  who  is  subsequently  examined  as  a  wit- 
ness and  which  are  evidently  given  in  evidence  merely  by  w;i} 
of  contradicting  and  thereby  impeaching  his  credibility  as  a  wit- 
ness," 

Appeal  from  Circuit  Court,  Wilcox  County;  Hon.  Joliii 
Moore,  Ju'lge. 

Frank  I'Sniith,  convicted  of  murder,  and  sentenced,  ajjpeals. 
Reversed. 

On  pavt  of  the  State  there  was  evidence  indicating  that  tracks 
were  found  in  the  locality  of  the  homicide,  similar  to  defend- 
ant's tracks. 

On  cross-examination  of  defendant  as  a  witness,  he  was 
asked : 

"Didn't  you  tell  J.  M.  Smith,  in  Greenville  jail,  ahout 
three  davs  after  you  were  arrested,  yoit  would  toll  him  all 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 

la   vnlitmf^ 


this  volume. 


SMITH  V.  STATE. 


411 


mi 


Mi 


about  it  after  you  heard  from  Mr.  Tom  Kondrick,  or  words  to 
that  effect — or  wait  until  you  saw  Mr.  Kendrick,  and  you  would 
then  tell  him  all  al)out  it?"  Defendant  objected  to  the  ques- 
tion, because  it  called  for  a  statement  made  by  defendant,  which 
with  other  statements  had  already  been  rejected  because  not 
beiii^  shown  to  have  been  voluntarily  made.  Objection  over- 
ruled. Defendant  then  denied  making  such  statement.  The 
ilofcndant  Avas  then  interrogated  as  to  similar  statements  to  other 
persons;  same  objection  and  same  ruling  being  made.  De- 
fendant excepted  to  each  of  such  rulings. 

J.  M.  Smith,  in  rebuttal  for  the  State,  testified  that  defendant 
did  make  the  statement  which  liad  Ix'on  <lenied  by  him.  Other 
witnesses  in  rebuttal  on  behalf  of  the  State,  testified  to  other 
statements,  which  had  been  denied  by  the  defendant  during  his 
cross-examination. 

The  defendant  excepted  to  the  refusal  by  the  court  to  give  the 
following  instructions : 

"(1)  The  court  charges  the  jury  that  if  they  have  a  reason- 
able doubt,  growing  out  of  any  part  of  the  evidence,  as  to  the 
guilt  or  innocence  of  defendant,  he  is  entitled  to  the  benefit 
of  such  doubt,  and  should  be  acquitted." 

"(10)  The  court  charges  the  jury  that  before  they  can  con- 
vict the  defendant  tluy  must  be  satisfied  to  a  moral  certainty, 
not  only  that  the  proof  is  consistent  with  the  defendant's  guilt, 
but  that  it  is  wholly  inconsistent  with  every  other  rational  con- 
chjsion;  and,  unless  the  jury  are  so  convinced  by  the  evidence 
of  ch'f(Midant's  guilt  that  they  would  each  venture  to  act  upon 
that  decision  in  nuitters  of  highest  concern  and  importance  to 
his  own  interest,  then  they  must  find  tho  defendant  not  guilty." 

"(1(5)  The  court  ehargx's  the  jury  that  if  they  find  from  the 
evidence  that  a  confession  wouhl  not  have  been  made  but  for  the 
iuilnence  of  hope  or  fear  excited  in  the  mind  of  defendant,  held 
out  or  made  by  a  person  or  persons  in  authority,  they  may  look 
to  these  circumstances  under  which  such  confession  was  made 
to  aid  them  in  the  conclusion  as  to  its  truth." 

''(19)  The  court  charges  the  jury  that  if,  in  view  of  all  the 
evidence,  they  are  not  satisfied  that  a  confession  was  made 
freely,  voluntarily,  or  intelligently,  or  if  it  is  not  harmonious 
and  consistent  with  the  other  evidence,  it  should  ho  rejected  as 
wanting  in  credibility,  or  as  not  entitled  to  weight  in  determin- 
ing the  question  of  guilt  or  innocence." 


It 


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412 


AMERICAN  CRIMINAL  REPORTS. 


"(22)  The  court  charges  the  jury  that,  before  they  can  con- 
vict the  defendant  npon  a  statement  made  by  him,  thoy  must 
believe  that  ho  made  said  statement,  that  it  is  true  in  fact, 
that  it  is  consistent  witli  the  other  evidence,  and  was  voluntarily 
and  intelligently  made." 

For  further  statement  of  facts  see  opinion. 

Normmi  D.  Goldhiig,  for  the  appellant. 
Massey^  Wlkon,  Attorney  General,  for  the  State. 

Shaupe,  J.  Defendant  was  convicted  on  an  indictment 
charging  him  with  the  murder  of  Bob  Davidson.  On  tlie  trial 
it  was  shown  that  the  deceased  Avas  killed  by  a  shot  fired  alxiut 
dark  on  Thursday  evening,  when  he  was  near  his  house,  and 
at  a  lot  where  he  had  gone  to  attend  to  hiS  mules.  The  evidence 
introduced  to  connect  the  defendant  with  the  crime  was  mainly 
circumstantial.  Against  defendant's  objection  Lulu  Davidson, 
widow  of  deceased,  was  allowed  to  testify,  as  recited  in  the  bill 
of  exceptions,  "that  some  one  came  to  their  house  on  the  Sunday 
night  before  the  killing,  after  they  had  gone  to  l)ed,  and  kn(u  ked 
on  the  side  of  the  house,  but  left  without  saying  anything, 
when  Bob  got  up  to  see  avIio  it  was."  In  the  record  there  is 
nothing  tending  either  directly  or  iuferentially  to  connect  the 
defendant  with  the  occurrence  so  testified  about.  Had  there 
been  evidence  tending  to  show  the  deceased  had  on  the  occasion 
of  the  shooting  been  decoyed  from  Ids  house  by  a  knocking 
on  the  house  or  otlun'  similar  means,  it  may  be  that  the  mere 
coincidence  could  have  furnished  an  inference  of  identity  as 
between  the  person  who  did  the  knocking  and  the  slayer,  and 
therefore  an  inference  that  the  sho<jting  was  in  consnnunation 
of  a  jn'oviously  formed  and  continuing  murderous  intent.  But 
there  is  here  a  lack  of  evidence  of  that  character.  The  testi- 
mony so  objected  to  Avas  irrelevant.  Its  admission  was  error 
which  may  have  been  prejudicial  to  defendant,  and  consecpu'iitly 
the  judgment  must  be  reversed. 

It  was  permissible  for  the  witness  Andrews  to  testify  that  a 
track  he  saw  on  Saturday  after  the  shooting,  and  wliich  led 
fi'om  defendant's  barn  along  a  field  and  ditch  towards  defend- 
ant's house,  looked,  where  it  left  the  barn,  like  the  track  of  a 
person  running,  and  in  the  field  looked  like  the  person  was 
walking.     These  statements  were  not  of  oi^inion  merely,  but 


SMITH  V.  STATE. 


413 


were  descriptive  of  facts.  See  Perry  v.  The  State,  87  Ala.  30,  G 
South.  425;  Wathins  v.  State,  89  Ala.  82,  8  S.uth.  134. 

Decisions  of  this  court  have  established  that  a  defendant  in  a 
criminal  case,  by  exercising  the  privilege  given  him  by  the  stat- 
ute of  testifying,  waives  the  constitutional  right  to  protection 
against  compulsion  to  give  evidence  against  himself,  and  becomes 
subject  to  cross-examination  and  impeachment  as  are  other 
witnesses.  Clnrh  v.  State,  78  Ala.  474;  Thomas  v.  State,  lOO 
Ala.  53,  14  South.  621;  ^Yilliams  v.  State,  98  Ala.  52,  13 
South.  333.  This  principle  was,  in  Hicks  v.  State,  99  Ala. 
1G9,  l-'i  South.  375,  applied  as  authorizing  the  State,  by  way  of 
iuipeacliing  a  defendant  as  a  witness,  to  make  proof  of  confes- 
sions not  shown  to  have  been  voluntary.  The  court's  action  in 
permitting  the  State  to  inquire  of,  and  to  adduce  evidence  of, 
the  statements  objected  to  as  confessions,  was  in  accordance  with 
what  was  held  in  the  cases  above  referred  to,  and  was  not 
erroneous. 

The  charges  refused  to  the  defendant  were  each  bad.  Charge 
Xo.  1  would  have  tended  to  mislead  the  jury  to  acquit  on  a 
reasonable  doubt  arising  from  part  of  the  evidence,  though  con- 
sideration of  the  evidence  as  a  whole  might  have  disjielled  such 
doubt.  Liner  v.  State,  124  Ala.  1,  27  South.  438 ;  Nicholson  v. 
State,  117  Ala.  32,  23  South.  792.  Xo.  10  is  argumentative. 
It  is  in  the  terms  of  other  charges  that  have  been  condemned 
by  decisions  of  this  court.  See  Amos  v.  State,  123  Ala.  50, 
2(1  South.  524;  Rogers  v.  State,  117  Ala.  9,  22  South.  G66. 
The  jury  is  not  required  to  pass  on  the  credibility  or  truth  of 
statements  made  by  one  who  is  subsequently  examined  as  a 
witness,  and  which  are  given  in  evidence  merely  by  way  of 
contratlicting,  and  tliereby  impeaching,  his  credibility  as  a 
witness.  The  contrary  is  implied  by  the  terms  of  refused 
charges  IG,  19,  and  22,  and  in  that  respect  those  charges  are 
misleading. 

Keversed  and  remanded. 


:fl] 


Am\ 


yyn: 


Note  (By  J.  F.  G.). — We  cannot  agree  with  the  court  that  an  Invol- 
untary confession  is  a  legitimate  basis  for  cross-examination  of  the 
accused  as  a  witness.  Involuntary  confessions  are  rejected  because 
they,  "have  no  just  and  legitimate  tendency  to  prove  the  fact  admitted" 
(Shaw,  C.  J.,  12  Amer.  Crim.  Rep.  61) ;  hence,  are  not  competent  for  any 
purpose.  To  exclude  a  confession  because  it  is  not  competent  proof  of 
a  supposed  fact,  and  then  to  admit  it  to  disprove  a  denial  of  such 


i'l 


H 


i 


.c 


Ir  i;     .111! 


414 


AMERICAN  CRIMINAL  REPORTS. 


m 


supposed  fact,  belongs  to  that  class  of  reasoning,  which  Is  so  reflncd, 
as  to  surpass  the  human  understanding. 
In  State  v.  Shepherd,  88  Wis.  185,  59  N.  W.  Rep.  449,  it  was  held: 

1.  Error  in  admitting  an  involuntary  confession  is  not  cured  by 
subsequently  excluding  it. 

2.  It  is  error  to  permit  the  accused  to  be  cross-examined  as  to  an 
Involuntary  confession. 

3.  It  is  error  to  admit  an  involuntary  confession,  as  impeaching 
evidence. 

This  opinion  is  given  in  full  in  a  previous  volume  o:t  these  reports.— 
11  Amer.  Grim.  Rep.  290. 


Woods  v.  State. 

81  Miss,  164—32  So.  Rep.  998. 

Decided  November  24th,  1902. 

Homicide:     Indictment — Instruction. 

1.  It  is  not  a  valid  objection  to  an  Indictment  against  two  persons 

for  homicide,  that  it  charges  each  with  the  act  of  killing. 

2.  An  instruction  In  a  homicide  case,  which  hypothetlcally  but  Imi)er- 

fectly  states  facts,  as  a  basis  for  a  verdict  of  guilty,  and  Ignores 
the  question  of  intention,  is  reversible  error. 

Api-oal  from  Circuit  Court,  Leflore  County;    lion.  F.  1). 
Larkin,  Judge. 

Lee  \Voo(ls,  convicted  of  manslaughter,  'appeals.     Reversed. 

Coleman  &  Bay,  for  the  appellant. 

Monroe  McClurg,  Attorney  General,  for  the  State. 

Teukal,  J.  The  appellant,  being  convicted  of  manslaughter 
and  sentenced  to  the  penitentiary,  ai)|)eals,  and  assigns  several 
errors  in  the  proceedings  against  hini  lie  demurred  to  the 
indictment,  which  was  overruled,  and  of  that  he  complains. 
The  indictment,  in  pyoper  form  in  other  resj)ects,  allt^^s: 
"That  Lee  Woods  and  Wiley  Short,  in  said  county,  on  the 
30th  day  of  June,  1902,  willfully,  feloniously,  and  each  of 
his  malice  aforethought,  did  then  and  there  kill  and  murder 


"For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


,1 II 


WOODS  V.  STATE. 


415 


Henry  Hog,  against,"  etc.  The  defect  in  the  indictment  pointed 
out  in  the  assignment  and  brief  of  appellant  is  ''that,  when 
it  is  charged  that  each  of  his  malice  aforethought  did  the  kill- 
ing, it  was  error  to  include  them  both  in  the  same  indictment." 

The  objection  to  the  indictment,  in  our  opinion,  is  rather 
critical  and  technical  than  substantial.  The  defect,  if  admitted, 
du{s  not  render  the  indictment  void,  because  it  has  long  been 
established  that  mala  grammatica  non  vitiat  chartam,  when  the 
nuaning  is  apparent. 

The  third  and  fourth  instructions  for  the  State  are  assigned 
for  error.  As  we  must  reverse  the  judgment  for  another  cause, 
it  is  unimportant  that  we  pass  upon  these  grounds,  as  it  cannot 
arise  upon  a  future  trial ;  the  acquittal  of  Short  having  made 
thcni  inappropriate  in  the  further  consideration  of  the  case. 

Another  instruction  assailed  as  error  is  as  follows: 

"Instruction  No.  f>.  The  court  instructs  the  jury  that  if  they 
believe  from  the  evidence,  beyond  a  reasonable  doubt,  th  t 
Henry  Hog  shot  the  sister  of  defendant,  as  shown  by  the  tes- 
timony, and  that  defendant  then  accosted  deceased  with  the 
remark,  'Damn  you !  you  have  shot  my  sister,'  or  similar  words, 
at  the  same  time  presenting  his  rifle  as  if  about  to  shoot  Hog, 
and  that  Hog  then  raised  his  pistol  and  wheeled,  and  defendant 
then  shot  and  killed  deceased,  they  will  find  him  guilty  as 
charged,  unless  they  believe  him  guilty  of  manslaughter." 

In  our  opinion,  the  instruction  is  erroneous.  It,  in  effect, 
directs  a  verdict  for  manslaughter  unless  the  jury  should  con- 
vict appellant  of  murder.  And  this  direction  to  find  him  guilty 
of  manslaughter  is  not  left  to  the  discretion  of  the  jury,  nor  is 
it  made  dependent  upon  the  intention  of  Woods  in  shooting, 
nor  upon  the  condition  whether  he  shot  in  self-defense  or  not. 
It  is  too  bare  of  acts  and  their  connection  with  each  other,  and 
of  the  intent  in  doing  them,  to  be  a  safe  guide  to  the  jury. 

If  epitomized,  it  is  as  if  it  said :  If  Hog  raised  his  pistol  and 
wheeled,  and  Woods  presented  his  rifle  and  fired,  and  killed 
Hog,  you  must  find  him  guilty  of  murder,  or  at  least  of  man- 
slaughter. It  does  not  commend  itself  to  our  conacience  or 
judgment. 

Reversed  and  remanded. 


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416  'AMERICAN  CRIMINAL  REPORTS. 

HiBLEK  V.  COMMOXWEALTII. 

25  Ky.  Law  Repr.  277—74  S.  W.  Rep.  1079. 

Decided  June  11.  1903. 

Homicide — Instructions — Exceptions:  Necessity  to  instruct  upon  lea- 
sonalle  doubt  as  to  grade  of  offense — When  exceptions  are  not 
necessary. 

1.  The  Court  should  Instruct  upon  the  law  applicable  to  the  case  with- 

out being  so  requested. 

2.  Failure  to  instruct  as  to  the  law  boariug  upon  the  case,  neel  not 

be  followed  by  an  immediate  exception. 

3.  If  the  reason  for  a  rule  fails,  the  rule  also  fails. 

4.  Failure  to  instruct  that  the  defendant  shall  have  the  benefit  ot  a 

reasonable  doubt  existing,  as  to  the  grade  of  the  offense,  iri  re- 
versible error. 

Appeal  from  the  Circuit  Court  of  Franklin  County. 
Squire  llibler,  convicted  of  murder,  appeals.     Keversed. 

T.  inter  Crockett  and  Guy  II.  Br'ujgs,  for  the  appellant. 

M.  B.  Todd,  for  the  Commonwealth. 

Baekek,  J.  The  appellant,  Squire  llibler,  who  was  a  con- 
vict serving  a  term  of  21  years  in  the  penitentiary  at  Frankfort, 
Ky.,  in  an  altercation  with  a  fellow  prisoner,  Alex.  Smith, 
killed  him,  by  stabbing  him  in  the  heart  with  a  knife.  For 
this  offense  he  was  indicted  by  the  grand  jury  of  Franklin 
County,  charged  with  willful  murder.  Upon  trial  he  was  found 
guilty  by  the  jury,  and  his  sentence  fixed  at  confinement  in  the 
penitentiary  for  the  term  of  his  natural  life.  His  motion  for  a 
new  trial  having  been  overruled,  he  has  api)ealed  to  this  court. 

As  a  gnjund  for  reversal,  he  assigns  error  of  the  trial  court  in 
failing  to  instruct  the  jury  that,  ''if  they  have  a  reasonable 
doubt  as  to  whether  the  defendant  has  hecn  proven  guilty  of 
manslaughter  or  murder,  they  shall  give  him  the  benefit  of  that 
doubt,  and  find  him  guilty  of  manslaughter." 

The  Attorney  General  insists  that  this  error  was  waived  by 
the  failure  of  the  defendant  to  except  to  the  instruction  when 
given.    In  this  we  cannot  concur. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


HIBLER  V.   COMMONWEALTH. 


417 


111  the  case  of  BucMcs  v.  ComrnonweaUh,  24  Ivy.  Law  Rep. 
571,  (tb  S.  W.  1084,  this  court  reviewed  the  whole  subject  of 
what  exceptions  have  to  he  reserved  at  the  time  of  the  ruling  of 
the  court  in  order  to  be  available  on  appeal,  and  in  regard  to 
the  very  matter  under  discussion  said :  "But  when  we  come  to 
the  cjiu'stioii  of  instructions,  a  diiferent  rule  obtains.  A  trial 
court  is  required,  without  request,  to  give  the  law,  the  correct 
law,  and  tiie  whole  law.  It  is  not  necessary  to  call  the  judge's 
attention  to  an  error.  The  law  requires  his  attention.  It  is  not 
only  not  necessary  to  specify  the  error  wliicli  he  is  committing, 
but  it  is  not  required  that  ho  be  requested  to  give  all  the  law 
of  the  case.  Again  ami  again,  in  cases  in  which  the  law  was 
given  with  absolute  correctness,  so  far  as  the  court  undertook 
to  give  it,  this  court  has,  upcjii  a  general  exception  to  the  correct 
law  thus  given,  I'eversed  because  the  court  failed  to  give  law 
which  was  not  asked  for,  and  to  which,  as  it  was  not  given, 
and  was  not  given,  inctirrectly,  an  exception  could  not  apply. 

''A  general  exception  iloes  not  point  out  error  iu  law  which 
is  not  given.  It  does  not  even  call  attention  to  the  fact  that  it  is 
not  gi\cii.  It  docs  not  even  sp(>cify  the  error  complained  of  in 
the  law  laid  down,  and  yet,  under  such  general  exception  to 
instructions  given,  wc  I'cvcrse  for  failure  to  give  others  Avhich 
were  not  asked.  Tliere  is  no  policy  which  requires  such  an 
exception,  for  the  exception  has  no  etfcct,  and  can  accomplish 
no  purpose.     Where  the  reason  fails,  the  rule  also  fails." 

Section  231)  of  the  Criminal  Code  is  as  follows; 

"If  there  ho  a  reasonable  doubt  (jf  the  <legrce  of  the  offense 
which  the  defendant  has  coniinittod,  he  shall  only  be  convicted 
of  the  lower  degree." 

This  court,  in  Arnold  lk  Commonwealth,  24  Ky.  Law  Rep. 
1921,  72  S.  W.  753,  and  in  Williams  v.  Commonwealth,  80  Ky. 
313,  held  that  the  failure  of  the  trial  coiirt  to  give  an  instruc- 
tion substantially  embracing  the  provisions  of  section  239  of 
the  Criminal  Code,  where  it  was  applicable,  was  error  preju- 
dicial to  the  rights  of  the  defendant. 

Wherefore  the  judgment  is  reversed  for  proceedings  consist- 
ent with  this  opinion. 


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Vol.  XIII— 2T 


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418 


AMERICAN  CRIMINAL  REPORTS. 


11 


RoaKrs  V.   State. 

82  MisH.  479—34  So.  Rep.  320. 

Decided  May  18,  1903. 

Homicide — Istructions:  Erroneous  instruction  as  to  self-defense;  aUo 
on  subject  of  mutual  combat,  foreign  to  the  evidence — Numerous 
instructions  give  opporttmitics  for  error. 

1.  It  Is  error  to  instruct  the  jury  that  if  "the  defendant  wai  the 

aggressor  and  provoked  the  difficulty,  and  that  he  prepared  for 
it  by  arming  himself  with  a  deadly  weapon,  to-wlt.  a  pi.stol, 
and  sought  out  the  deceased  and  provoKed  the  difficulty,  Intend- 
ing to  use  his  pistol  and  overcome  his  adversary.  If  nccssniy, 
and  that  he  then  shot  and  killed  Byrd,  he  is  guilty  of  murder,  and 
the  jury  should  so  And,"  because  all  assumptions  of  fact  might 
be  true  and  yet  homicide  not  in  pursuance  of  the  previous  de- 
sign. 

2.  It  is  error  to  instruct  on  matters  not  consistent  with  the  evidence. 

3.  "Persons  at  their  country's  bar  are  not  to  bo  charged  into  the  peni- 

tentiary by  a  court  as  a  matter  of  law,  but  to  be  put  there  by 
verdicts  of  juries,  finding  their  guilt  as  a  fact." 

4.  Error  is  liable  to  result  when  numerous  instructions  are  prayed 

by  the  State. 

Appeal  from  the  Circuit  Court,  Neshoba  County;  lion.  G.  i}. 
Hall,  Judge. 

II.  II.  liogers,  convicted  of  murder,  appeals.     Ilevorsed. 

S.  A.  Witherspoon,  W.  T.  llouslon,  and  L.  M.  Southworlh, 
for  the  appellant. 

Woods,  Fewdl  if-  Fexvcll  and  /.  N.  Flowers,  Assistant  Attor- 
ney General,  for  the  State. 

Price,  .7.  The  grand  jury  of  Xeshoba  County,  March  s, 
1902,  indicted  H.  II.  Kogers  for  the  murder  of  Tom  A.  IJyrd, 
and  on  Decemlvr  23,  11)02,  he  was  tried,  convicted,  and  sen- 
tenced to  life  imprisonment;  and  the  case  is  here  on  appeal, 
with  a  record  challenged  by  the  defendant  with  forty-four  iis- 
signments  of  error.  We  will  consider  but  one  of  the  mnnerous 
errors  assigned,  in  so  far  as  it  relates  to  two  charges  given  for 
the  State — Nos.  2  and  5. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


ROGERS  V.  STATE. 


419 


Clinrge  "No.  2  is  in  tho  following  language:  "If  the  jury 
shnll  believe  Iroui  the  evidence,  beyond  all  reasonable  doubt, 
that,  in  the  difliculty  in  which  Byrd  lost  his  life,  that  the  de- 
fciuliint  was  the  aggressor  and  provoker  <>f  tho  difficulty,  and 
that  he  prepared  himself  for  it  by  arming  himself  with,  a  deadly 
wcapnii,  to-wit,  a  pistol,  and  8oi<ght  out  tho  deceased  and  pro- 
voked the  difficulty,  intending  to  use  his  pistol  and  overcome 
liiti  a<lversary,  if  necessary,  and  that  he  then  shot  and  killed 
Ijyrd,  he  is  guilty  of  murder,  and  the  jury  should  so  find." 

This  instruction  charges  the  jury,  in  substance,  that  if  they 
holicvc  that  the  defendant  was  the  aggressor  and  provoked  tho 
(liliiculty,  and  armed  himself  for  it,  and  sought  out  Byrd,  in- 
tend ing  to  use  the  pistol  and  overcome  Byrd,  if  necessary,  and 
that  he  then  killed  Byrd,  he  is  guilty  of  nuirder.  This  charge 
is  erroneous,  in  that  it  denies  the  defendant  the  right  of  self- 
(IctVnso.  All  the  facts  assumed  or  alleged  in  the  instruction 
may  hv  true,  and  yet  the  killing  may  not  have  been  in  pursuance 
(if  such  former  design,  or  it  may  have  been  done  in  necessary 
scif-(l(>fense. 

The  fifth  instruction  given  for  the  State  is  as  follows:  "If  the 
jury  shall  believe  from  the  evidence,  beyond  all  reasonable 
doybt,  that  there  was  trouble  or  misunderstanding  at  the  time 
of  the  homicide  between  Byrd  and  Bogers,  and  that  they  agreed 
to  face  each  other  about  it,  and  that,  in  pui'suance  of  the  pur- 
pose to  meet  and  face  each  other,  each  of  them  armed  himself 
with  a  deadly  weapon,  to-wit,  a  pistol,  and  that  they  then  met 
and  faced  each  other,  and  that  Rogers  in  that  meeting  shot  and 
killed  Byrd,  he  is  guilty  of  murder,  and  the  jury  should  so 
find." 

This  instruction  told  the  jury  that  they  should  convict  Rog- 
ers of  murder  if  they  believed  there  was  trouble  or  misunder- 
standing between  Rogers  and  Byrd  at  the  time  of  the  homicide, 
and  that  they  agreed  to  face  each  other,  and  each  armed  himself 
with  a  pistol,  and  that  they  did  so  face  each  other,  and  Rogers 
killed  Byrd  at  the  meeting.  The  error  in  this  instruction  is  too 
manifest  for  argument  or  citation  of  authorities.  There  is  no 
evidence  in  the  case  on  which  to  base  such  a  charge.  There  is 
no  evidence  that  the  parties  had  agreed  to  such  a  meeting.  The 
preliminary  negotiations  of  the  friends  and  relatives  of  the 
inifortunate  girl,  and  the  part  played  in  this  effort  to  get  mat- 
ters amicably  adjusted,  by  Rogers,  were  all  consistent  with  a 


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420 


AMERICAN  CRIMINAL  REPORTS. 


Inwful  piirpoac.  Such  n  incotinf;  na  siibsoqiiontly  to(tk  iiln-'o 
between  Kogcra  and  Byril,  in  which  Byrd  lost  hia  life,  falls  lar 
rthort  of  a  prearranged  meeting  for  a  duel.  In  the  one  p!i  o 
the  meeting  was  to  adjust  a  misunderstanding,  and  remove,  it 
possible,  all  stain  from  tlie  cluivaeter  of  the  girl.  T3ut  in  the 
other  all  eiforts  to  peaceable  settlement  are  known  to  have  passed, 
and  the  parties  meet  only  to  do  battle. 

The  state  asked  nine  instructions,  and,  as  is  usual  in  siicli 
eases,  falls  an  easy  victim  to  too  many  instructions.  "The  old 
|)aths  are  the  best  i)aths."  As  said  by  this  court  in  PaUcrsoit  r. 
SUdc,  75  iMiss.  r*?;"),  2\\  South.  ('47,  by  dudge  Whitfield:  "Per- 
sons at  their  country's  bar  are  not  to  1h>  charged  into  the  peni- 
tentiary by  a  court  as  a  matter  of  law,  but  to  bo  put  there  by 
verdicts  of  juries,  finding  their  guilt  as  a  fact."  A  circuit 
judge  can  hardly  keej)  a  ulsi  /triiis  trial  free  of  error  wherci 
counsel,  unconsciouslv  swaved  bv  their  interest  in  the  case,  de- 
mand  so  much  at  his  hands,  and  at  a  time  when  both  *^»me  and 
o])portimity  preclude  an  examination  of  the  authorities.  Priiic 
r.  Sfate,  73  Miss.  842  (IJ)  Simth.  711);  Patlcrson  v.  Slate, 
7r.  Miss.  075  (23  South.  C47). 

Keversed  and  renuuided. 


People  v.  Cole. 

127  Cal.  545—59  Pac.  Rep.  984. 

Decided  Feb.  8,  1900. 


Homicide!  Evidence — Practice — Record — Jitdoment  roll — Bill  of  Ex- 
ceptions— Contradicting  witness  by  previous  statements — Error 
as  to  instructions  conceded. 

1.  Where  the  attorney  general  has  confessed  manifest  error  in  the 

instructions  given  to  the  jury  upon  the  trial  of  a  defendant  ac- 
cused of  murder,  the  effect  of  the  error  cannot  be  overcome  by 
filing  certified  copies  of  requests  for  instructions  by  the  defend- 
ant, suggested  to  contain  similar  error,  where  the  alleged  requests 
are  not  authenticated  as  such  in  any  manner  that  would  entitle 
them  to  be  considered  as  part  of  the  record. 

2.  Where  the  instructions  are  properly  authenticated  so  as  to  be  part 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


v 


PEOPLE  I.  COLE. 


421 


of  the  Judgment-roll,  they  ought  not  to  be  duplicated  by  Insertion 
in  a  bill  of  exceptions.  There  should  be  only  one  Insertion  In  the 
record  of  instructions  properly  authenticated. 

3.  Where  there  are  circumstances  In  evidence  Indicative  of  the  guilt  of 

the  defendant,  and  others  of  an  opposite  tendency,  and  the  opin- 
ions of  the  medical  witnesses  were  conflicting,  the  question  of  the 
guilt  or  innocence  of  the  defendant  is  for  the  jury  to  determine. 

4.  A  motion  will  not  lie  to  set  aside  the  Information  for  murder  after 

the  defendant  has  been  held  to  answer  as  to  the  result  of  prelim- 
inary examination,  on  the  ground  that  the  district  attorney  who 
filed  the  complaint  had  no  personal  knowledge  of  the  facts  of  the 
homicide.  Any  Imperfections  in  the  complaint  are  cured,  where 
the  evidence  taken  by  the  magistrate  warrants  an  order  holding 
the  defendant  to  answer. 

5.  A  motion  in  arrest  of  .judgment  can  only  be  made  for  defects 

api)earing  upon  the  face  of  the  Indictment  or  Information. 
C.  The  cross-examination  of  a  witness  for  the  defendant  who  had  made 
previous  statements  to  the  district  attorney  In  conflict  with  the 
testimony  given,  must  be  confined  to  the  question  of  such  conflict 
on  material  points;  and  it  is  error  for  the  court  to  permit  the 
district  attorney  to  read  portions  of  the  statement  made  to  him, 
having  no  relation  to  the  testimony  given,  and  to  cross-examine 
the  witness  thereon,  to  the  prejudice  of  the  defendant. 

Appeal  from  Superior  Court  of  Montrey  County;  lion. 
X.  A.  I  )orn,  .1  udge. 

J()sc])h  S.  Cole,  convicted  of  murder  in  the  second  degree, 
appeals.     Iveversed. 


i 


B.  V.  Sargent,  for  the  appellant. 

ir.  F.  Fitzgerahl,  Attorney  General,  IF.  77.  Anderson,  As- 
sistant Attorney  General,  and  Tircy  L.  Ford,  Attorney  General, 
for  the  plaintiiF. 

JJkatty,  C.  J.  Defendant  was  convicted  of  mnrder  in  tho 
second  degi'ee,  and  appeals  from  the  judgment  and  from  an 
order  denying  his  motion  for  a  new  trial.  The  assignments  of 
error  n])on  the  rulings  of  the  trial  court  are  very  numerous,  and 
the  Attorney  General  confesses  that  several  of  them  are  well 
founded.  In  view  of  this  confession  of  error,  wc  deem  it  un- 
necessary to  enter  upon  a  particular  discussion  of  many  of  the 
points  i)resented  in  the  brief  and  argument  on  the  part  of  the 
aiipellant.  Wc  will,  however,  advert  briefly  to  some  matters 
involved  in  the  further  proceedings  to  be  taken  in  the  case. 

The  Attorney  General,  among  other  things,  admits  that  the 


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422 


AMERICAN  CRIMINAL  REPORTS. 


trial  judge,  in  his  charge  to  the  jury,  misstated  the  law  appli- 
cahle  to  the  case  in  several  pavticulars.  In  consequence  of 
this  admission,  the  District  iVitorney  of  the  county  where  tlic 
conviction  was  had  asked  leave  to  amend  the  record  here  l»y 
filing  certified  copies  of  certain  instructions  alleged  to  have 
heen  given  at  the  request  of  the  defendant,  and  which,  it  is 
suggested,  contain  the  same  propositions  which  are  complained 
of  in  the  charge  of  the  court.  We  do  not  find  that  this  sug- 
gestion is  borne  out  by  a  comparison  of  the  two  sets  of  instruc- 
tions, but  if  it  were  Ave  could  not  take  notice  of  tiie  fact,  for 
the  reason  that  these  alleged  reipiests  to  charge  are  not  au- 
thenticated in  any  numner  that  would  entitle  them  to  be  treated 
as  a  part  of  the  record.  They  are  not  included  in  any  bill  (if 
exceptions.  Xot  one  of  them  bears  the  signature  of  the  trial 
judge,  and  they  do  not  purport  to  have  hcvn  reqnestt^l  by  any 
one.  The  provisions  of  the  Penal  Code  (sections  1127,  llTd, 
1207),  and  the  numerous  decisions  of  this  court  construing 
them,  and  the  corresponding  sections  of  the  old  criminal  practice 
act,  point  out  very  plainly  the  mode  of  authenticating  tl:i' 
charge  of  the  court  and  the  recpiests  to  charge,  with  the  rulings 
thereon,  so  i\S  to  make  tliem  a  ])art  of  the  record.  These  di- 
rections of  the  statute  should  be  observed,  for  otherwise  the 
charge  of  the  court,  and  the  requests  to  charge,  whether  allowecl 
or  refused,  can  only  become  a  jinrt  of  the  record  by  IxMiig  in- 
corporated in  a  bill  of  exceptions.  In  this  case  tlie  alleged 
requests  to  charge  are  not  autlunticated  in  either  of  the  methods 
prescrib<'d  by  the  statute. 

The  condition  of  this  record  gives  occasion  to  advert  to  a 
fault  of  practice,  by  no  means  imcommon,  which  is  productive 
of  unnecessary  exjiense  and  inconvenience.  It  very  frecpuMitly 
happens  that  the  entire  charge  of  the  court — both  that  which 
the  court  has  given  of  its  own  motion  and  the  requests  to  charge 
— is  inserted  in  the  record  twice,  once  as  a  part  of  the  judg- 
ment roll,  .under  section  1207  of  the  Penal  Code,  and  again 
as  a  part  of  th.e  defendart's  bill  of  exce])ti()ns.  We  avouM 
suggest  that  if  the  charges  are  pro])ei'ly  authenticated,  as  they 
should  be,  and  thus  become  a  part  of  the  judgment  roll,  there 
is  no  more  propriety  in  setting  them  out  again  in  the  bill  of 
exceptions  than  there  Avould  be  in  initting  the  indictment  ov 
information,  minutes  of  the  plea  and  of  the  trial,  and  judgment 
in  the  bill  of  exceptions.     When  anything  is  properly  in  the 


PEOPLE  V.  COLE. 


423 


record  onco,  it  is  worse  than  useless  to  repeat  it  in  the  bill  of 
exceptions;  for  the  only  result  is  to  cumber  the  transcript  with 
U:<('los.s  niattc  r,  making  it  more  inconvenient  to  examine,  and 
iiii])()sing  an  unnecessary  expense  upon  the  counties  for  printing. 
In  this  case  the  charge  of  the  court,  Avhich  is  very  lengthy,  is 
jiriiitcd  in  the  transcript  no  less  than  three  times, — once  as  a 
pn't  of  the  judgment  roll,  where,  for  lack  of  authentication,  it 
was  not  entitled  to  be  ]>laced,  and  tv/ice  in  the  bill  of  exceptions, 
where  one  insertion  would  seem  to  have  been  sufficient. 

Returning  from  this  digression  to  the  nuitters  urged  by  the 
appelhint  as  grounds  for  reversal  of  the  judgment,  it  will  Ikj 
sntlicieiit  for  tlie  purposes  of  this  opinion,  to  make  a  very  gen- 
eral statement  of  the  facts  of  the  case.  The  defendant  was  ac- 
cused of  the  nuirdcr  of  his  wife's  sister.  The  deceased  was 
ail  epileptic,  and  subject  to  very  violent  attacks,  followed  by 
several  hours  of  stupor  or  insensibility,  and  was  peculiarly 
liahle  lo  such  attacks  when  under  the  influence  of  alcohol,  a  cou- 
(litioii  in  which  she  was  not  infrenquently  found.  About  10 
o'clock  in  the  evening,  after  drinking  more  or  less  whisky, 
she  and  the  defeiidunt,  who  was  also  partially  intoxicated, 
entered  a  buggy,  and  drove  to  a  saloon,  where  they  obtained 
another  bottle  of  whisky,  with  which  tlity  departed.  At  3 
o'clock  next  morning  tl'.c  defendant  drove  up  to  his  house  with 
the  dead  body  of  the  deceased  by  his  side,  her  head  being  against 
his  breast,  and  ])artly  covered  by  a  buggy  robe.  Her  clothes 
were  torn  and  disarranged,  'ind  tlien*  were  evidences  that  she 
lia<l  Ik'cii  in  a  struggle  on  the  ground.  To  his  wife  and  others 
who  were  then  present,  the  defendant  at  that  time  offered  no 
particniar  exj)lanation  of  what  had  occurred,  merely  insiting 
that  the  W(»man  was  drunk,  and  not  dead.  Subsequently  he 
stated  that,  after  i)roeiiring  the  whisky  at  the  saloon,  his  sister- 
in-law  had  proposed  a  moonlight  drive;  that  she  held  the  reins, 
and  was  driving  along  a  comitry  road,  when  she  suddenly  fell 
out  of  the  hiiggy.  lie  got  out  and  attempted  to  lift  her  back  into 
her  seat,  hut  she  struggled  and  I'esisted,  and  he  was  unable  to 
<lo  so.  iiccoiniiig  exhauste(l,  he  fell  asleep.  When  he  woke  up 
he  made  another  effort,  succeeding  in  getting  the  woman  back  in 
the  buggy,  and,  the  night  being  cold,  drew  the  buggy  robe  over 
her.  Tlu!  theory  of  the  defense  was  that  deceased  fell  from  the 
bnggy  in  an  epileptic  fit  brought  on  by  intoxication,  and  that 
she  died  in  consequence  of  the  fit,  or  was  perhaps  suffocated 


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AMERICAN  CRIMINAL  REPORTS. 


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by  the  buggy  robe  while  in  the  condition  of  stupor  following 
the  convulsion.  The  theory  of  the  prosecution  seems  to  hnve 
been  that  she  was  strangled  by  the  defendant  while  making  a 
felonious  assault  upon  her.  An  autopsy  revealed  appearance:* 
which,  according  to  some  of  the  medical  testimony,  in!  iirl 
strangulation.  Other  experts  ttstilied,  in  effect,  t'lM  c  was 
notliing  in  such  appearances  inconsistent  with  the  theory  tlmt 
slie  died  from  the  effects  of  the  epileptic  fit,  or  from  slow  suffn- 
catlon  by  the  buggy  robe.  Aside  from  the  medical  tcstinmn 
there  were  several  circumstances,  some  of  which  may  have 
had  a  tendency  to  sustain  the  theoi*y  of  the  prosecution,  while 
others  were  of  an  opposite  tendency.  ]Many  witneses  testified 
to  the  good  reputation  of  the  defendant  for  peace  and  qi^i-^t, 
honesty,  and  integrity. 

Such  being  the  case,  Ave  cannot  sustain  the  contention  of  liie 
defendant  that  the  evidence  was  wholly  insufficient  in  law  to 
sup])ort  the  verdict.  The  case  was  one  proper  to  be  submitted 
to  the  jury,  and  if  the  rulings  of  the  court  in  other  respects  had 
been  free  from  error  the  judgment  would  have  to  be  afiirnuMl. 

Xeither  did  the  court  err  in  overruling  the  motions  of  defend- 
ant to  set  aside  the  information  and  in  arrest  of  judgment.  The 
ground  upon  which  these  motions  wei'e  based  was  the  alleged 
fact  that  the  district  attorney,  U})on  whose  sworn  statement  the 
defendant  was  arrested  and  examined  before  the  committing 
magistrate,  had  no  ])er8onal  knowh'dge  of  the  facts  of  the 
homicide.  The  case  of  Ex  parte  Dlnimig,  74  Cal.  104  (15  Pac. 
61JJ),  is  cited  by  appellant  in  su])port  of  his  assign. nents  of 
error  respecting  this  matter.  The  decision  in  tinit  ease  inis  no 
ap])lioation  to  a  motion  to  set  aside  an  information  or  in  arrest 
of  judgment.  Wlun  a  charge  of  this  kind  has  l)cer  examined 
by  a  magistrate,  and  the  evidence  taken  at  the  examination 
warrants  an  order  hohling  the  defendant  to  answer,  the  imper- 
fections of  the  complaint,  if  any,  are  cured,  and  the  eommit- 
nient  is  legal.  As  to  the  motion  in  arrest  of  judgment,  that 
can  be  based  only  upon  defects  apjiearing  upon  the  face  of  the 
indictment  or  infornuition.    Pen.  C'od(>,  §§  1012,  118.5. 

lint  the  court  did  commit  an  error  gravely  prejudicial  to 
the  rights  of  defendant  in  })ermitting  the  District  Attorney  to 
pursue  the  course  of  cross-examination  he  adopted  witli  respect 
to  the  wife  of  the  defendant.  It  seems  that  a  few  days  after 
the  death  of  her  sister  the  wife  of  defendant  visited  the  office 


FRANCIS  V.  STATE. 


425 


of  the  District  Attorney,  and  made  a  long  statement,  partly 
hearsay,  about  the  circumstances  surrounding  her  sister's  death 
and  her  own  troubles  and  differences  with  the  defendant.  At  the 
trial  she  was  a  witness  for  the  defendant,  and  some  of  her  tes- 
timony was  at  variance  with  portions  of  her  previous  statements 
to  tlie  District  Attorney.  It  was  entirely  proper,  of  course,  in 
laying  a  foundation  for  impeachment,  to  question  her  as  to  those 
parts  of  her  previous  statement  which  Avere  in  conflict  with 
material  portions  of  her  testimony  at  the  trial.  But  the  court 
permitted  the  District  xVttorney  to  read  portions  of  her  state- 
ment, and  question  her  as  to  their  correctness,  which  had  no 
relation  I'l  her  testimony  at  the  trial,  and  several  of  which 
contained  matters  wholly  immaterial  and  irrelevant,  and  only 
calculated  to  prejudice  the  jury  against  the  defendant.  It  is 
not  necessary  to  go  into  a  detailed  statement  of  the  particulars 
in  which  this  cross-exauiination  exceeded  proper  limits.  For 
the  guidance  of  the  court  in  case  of  a  new  trial,  it  is  sufficient 
to  say  that,  if  the  wife  of  defendant  is  again  a  witness  in  his 
behalf,  her  previous  statements  can  be  laid  before  the  jury  only 
so  far  as  they  are  in  conflict  w'ith  her  testimony  on  material 
points.  The  errors  in  the  charge  of  the  court  being  confessed, 
it  is  unnecessary  to  specify  or  review  them,  as  they  are  not 
likely  to  he  repeated  on  a  new  trial.  The  judgment  and  order 
a])])ealed  from  are  reversed,  and  cause  remanded. 

Tk.mim.e,  J. ;  McFauland,  J. ;  Van  Dyke^  J. ;  IIexshaw,  J., 
concurred. 


Francis  v.  State. 

Texas  Court  of  Criminal  Appeals — 55  S,  W.  Rep.  488. 

Decided  Feb.  14,  1900. 

Homicide — Phactice:     Motion  for  continuance — Right  to  have  witness 
present  at  trial — Self  defense — Instructions. 


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1.  When  a  defendant  in  a  criminal  case  makes  a  proper  showing  for 
a  continuance,  because  of  the  absence  of  one  of  his  material  wit- 
nesses, a  continuance  cannot  be  avoided  by  the  prosecuting  at- 
torney admitting  what  the  witness  would  testify  to  if  present. — 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


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426 


AMERICAN  CRIMINAL  REPORTS. 


"The  Constitution  authorizes  a  defendant  to  have  compulsory 
process  in  order  to  secure  the  attendance  of  his  witnesses." 

2.  There  was  evidence  that  both  the  deceased  and  his  brother  attackej 

the  accused.  The  court  by  its  instructions  limited  the  right  of 
self  defense  to  an  attack  by  the  deceased,  thus  dlscredltlnK  the 
evidence  that  the  brother  was  engaged  in  the  assault, — held,  ei  ror. 

3.  The  court  having  grouped  certain  facts,  predicated  on  the  State's 

testimony,  and  charged  that  under  tho  circumstances^  the  law 
of  self  defense  would  not  apply,  etc.,  without  also  giving  a  eoun- 
ter-charge  based  upon  the  evidence  given  by  the  defense,— hel.l, 
error 

Appeal  from  District  Court,  Waller  County;  Hon.  Wells 
Thompson,  .1  udge. 

Lcnnard  Fi'ancis,  convicted  of  murder  in  the  second  degree, 
appeals.     Keversed. 

J,  D,  Harvey,  for  the  appellant. 

Robert  xi.  John,  Assistant  Attorney  General,  for  the  State. 

Hkxdf.ksox,  J.  Appellant  Avas  convicted  of  murder  in  tlio 
second  degree,  and  his  punishment  assessed  at  20  years'  cni,- 
flnemcnt  in  tlie  penitentiary.  Appellant  made  a  motion  for 
continuance,  imdicated  in  the  absence  of  one  Dave  ddliiisnii, 
whom  he  alleged  was  a  material  witness.  The  application  show.- 
due  diligence.  It  also  shows  the  materiality  of  said  testimony. 
The  court,  Innvevor,  appears  to  have  believed  that  the  reproduc- 
tion of  the  testimony  of  said  witness,  as  taken  in  the  examining 
trial  of  said  case,  was  sufficient,  and  that  permission  to  intro- 
duce this  was  a  sufficient  answer  to  appellant's  motion  for  con- 
tinuance. The  admission  even,  that  the  witness  Avould  swenr 
as  stated  in  the  application  for  continuance,  and  its  introdnc- 
tion,  Would  not  have  obviated  the  motion  for  continuance.  The 
Constitution  authorizes  a  defendant  to  have  compulsory  process 
in  order  to  secure  the  attendance  of  his  witnesses,  and  all  onr 
laws  recognize  the  right  of  a  defendant  to  have  the  personal 
presence  of  his  witnesses  at  the  trial. 

Ap])cllant  also  complains  of  the  court's  charge  on  self-defense, 
insisting  that  same  is  predicated  solely  on  some  iiostile  demon- 
stration or  attack  on  defendant  by  deceased  ;  and  he  urges,  in  this 
connection,  that  his  right  of  self-defense  was  based,  if  not  en- 
tirely, greatly  on  an  attack  made  on  him  by  Wash  Peterson, 
the  brother  of  deceased.     We  have  examined  the  record,  and 


FRANCIS  V.  STATE. 


427 


find  it  is  true,  as  asserted  by  him,  that  his  right  of  self-defense 
deponils  on  attack  made  on  him  by  both  Wash  and  Press  Peter- 
sou  (direased).  Appellant  testified  on  this  point  substantially 
as  follows:  After  the  first  difficulty  was  over,  in  which  ap- 
pellant had  been  thrown  down  and  beaten  by  deceased,  he 
states:  "I  started,  going  down  the  road  again.  Press  and  his 
wife  were  walking  right  behind  me,  down  the  road.  Press 
had  my  slmtgun  in  his  hands  all  this  time,  and  was  cursing 
and  abusing  me.  After  going  a  short  distance,  I  heard  Virginia 
Peterson  say,  'Shoot  him.  Wash;'  and  Minerva  [deceased's 
wife]  say  something  to  deceased;  and  immediately  a  gun  or 
pistt)l  was  fired  from  the  direction  where  Wash  Peterson  was, 
and  the  bullet  struck  and  went  through  my  right  leg.  I  im- 
nu'diatcly  whirled  around,  and  as  I  whirled  around  Press  struck 
me  on  the  arm  with  the  shotgun,  he  being  too  close  to  shoot. 
We  clinched,  and  he  threw  me  down,  and  he  was  on  top  of 
nie  when  I  brought  my  pistol  around  and  shot  him  through  the 
head.  I  made  no  demonstration  towards  deceased  until  the 
shot  was  fired  by  Wash  or  from  his  direction,  as  before  stated. 
I  then  thought  it  was  a  life  and  death  case,  and  I  would  defend 
myself  the  best  I  could.  If  Wash  nor  Press  had  not  attacked 
nie,  this  killing  would  not  have  occurred."  In  this  connection 
the  record  shows  that  deceased  was  shot  through  the  right  leg. 
Defendant's  Avitnesses  say  the  shot  api)arently  entered  from  the 
rear,  and  state's  witnesses  indicate  it  may  iave  entered  from  the 
front. 

Xow,  recurring  to  the  court's  charge  on  self-defense,  it  will 
bo  seen  that  he  confines  ai)pellant's  right  of  self-defense  exclus- 
ively to  an  attack  made  on  him  by  deceased.  True,  at  the  very 
time  at  which  he  says  he  shot  deceased,  deceased  Avas  attacking 
li!ni;  but  Wash  Avas  also  engaged  in  the  attack,  and  brought  on 
the  second  diHiculty,  according  to  his  testimony.  We  think  the 
court,  in  giving  a  charge  on  self-defense,  should  have  e^ihirged  it 
to  a  joint  attack  by  l)oth  deceased  and  his  brother.  Wash.  To 
confine  iv  alone  to  an  attack  by  deceased,  as  was  d<me,  was,  in 
effect,  to  discredit  the  testimony  of  ap])ellant  l)efore  the  jury. 

Ap|)ellaiit  also  complains  that  the  court,  in  conn^-ction  with 
the  charge  on  self-defense,  urouped  certain  acts  predicated  on 
the  State's  testimony,  anil  instructed  the  jury,  if  they  believe 
the  ditficnity  occurred  a-;  endKidied  in  the  charge,  that  ai)pellant, 
under  such  circumstances,  could  not  set  up  self-defense,  but  was 


; 


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428 


AMERICAN  CRIMINAL  REPORTS. 


guilty  of  murder  in  the  second  degree  or  manslaughter,  in  ac- 
cordance with  the  charges  on  that  subject.  The  court  may  liavc 
been  authorized  to  submit  this  charge  to  the  jury;  but  cc>r- 
tainly,  if  he  did  so,  he  should  have  subi.iitted  a  counter  prupo- 
sition  embracing  the  facts  testitied  to  by  defendant  and  his 
witnesses,  setting  up  self-defense,  and  instructing  them,  if  tlioy 
believed  the  homicide  occurred  in  that  manner,  that  apMcllaiit 
would  be  justiliable,  and  to  acquit  him.  This  would  have  been 
common  fairness  to  appellant,  and  he  should  not  have  been  put 
at  a  disadvantage  by  the  court's  charge,  as  we  find  it  in  this 
record.  Appellant  may  be  very  guilty, — about  that  we  cx])rcs.s 
no  ojiinion, — but  be  is  entitled  to  a  fair  and  impartial  trial. 
The  judgment  is  reversed,  and  the  cause  remanded. 

NoTK  (By  J.  P.  G.).— In  Van  Meter  o.  People.  60  111.,  168,  the  Supreme 
Court  of  Illinois  held  that  a  motion  for  continuance  could  not  be  de- 
feated, by  the  State's  Attorney  admitting  what  the  absent  witness  would 
testify  to:  but  that  the  admission  should  be  that  such  proposed  te«ti 
mcny  was  true.  This,  as  in  above  Texas  case,  was  based  on  the  Ccn- 
Btitution.  In  the  course  of  the  opinion  the  court  said;  "This  would 
take  from  the  accused  what  might  be  of  greatest  importance,  if  his 
affidavit  may  be  contradicted:  the  right  to  have  his  witnesses  seen 
and  heard  by  the  Jury."  See  also  WilUn  v.  People,  2  111.  (G  Scam.)  noi), 

In  the  later  case  of  Hicham  v.  People.  137  111.  75,  the  court  held 
under  statute  of  1885  that  at  a  terra  subsequent  to  the  Inlictmont 
term,  it  v'as  decretionary  with  the  court  to  require  the  state's  attor- 
ney to  admit  the  truth  of  the  affidavit  for  continuance,  or  simply  that 
the  absent  witness,  if  present,  would  so  testify.  In  this  case  no  refer- 
ence is  made  to  the  Van  Meter  case;  nor  is  the  constitutional  question 
raised.   The  Van  Meter  case  should  still  be  regarded  as  authority. 


ROBINSON  V.  STATE. 


429 


Robinson  v.  State. 

109  Ga.  506—34  S.  £2.  Rep.  1017. 

Decided  Jan.  24.  1900. 

Homicide:  When  verdict  for  manslaughter  is  alloicahle  under  an  in- 
dictme)it  for  murder — Selection  of  jury — Instructions — Remarks 
of  counsel — Separation  of  jury — Polling  the  jury. 

1.  If,  in  a  trial  for  murder,  the  law  of  voluntary  manslaughter  is  not 

involved,  the  court  should  not  charge  thereon;  but  so  doing  will 
not,  in  such  a  case,  be  cause  for  a  new  trial,  if  the  accused  bo 
rightly  convicted  of  murder,  or  If,  though  he  be  convicted  of 
voluntary  manslaughter  only,  a  verdict  of  murder  was  really  de- 
manded. If,  however,  in  such  a  case,  the  accused  be  convicted 
of  voluntary  manslaughter,  when  there  was  evidence  which  would 
have  warranted  an  acquittal,  or  when  his  statement,  if  believed, 
would  have  so  warranted,  there  should  be  a  new  trial. 

2.  Setting  aside  a  juror  for  cause  after  the  panel  of  48  has  been  made 

up  in  a  felony  case,  and  the  selection  of  the  jury  to  try  the  same 
has  been  begun,  is  not  cause  for  a  new  trial.  Doyal  v.  State,  70 
Ga.  134.  142. 

3.  After  the  original  panel  of  48  has  been  exhausted,  it  is  a  matter 

of  discretion  with  the  judge  as  to  what  numbers  of  jurors  shall 
compose  the  succeeding  panels  to  be  put  upon  the  accused. 

4.  Inaccuracies  in  explaining  to  jurors  the  meaning  of  the  questions 

propounded  on  their  voir  dire  will  not,  in  a  plain  case  of  guilt, 
and  when  no  injury  to  the  accused  is  afflrmatively  shown,  require 
a  conviction  to  be  set  aside. 

5.  When,   in  his  charge,  the  judge  informs  the  jury  that  the  con- 

tentions of  the  parties  are  so  and  so,  it  will,  in  the  absence  of 
a  certificate  from  him  to  the  contrary,  be  presumed  that  his  state- 
ment of  such  contentions  was  correct. 

G.  Objectionable  remarks  by  a  solicitor  general  in  his  argument  to  the 
jury  afford  no  cause  for  a  now  trial,  when  no  exception  was  taken 
thereto,  and  no  ruling  of  the  court  invoked  thereon,  (a)  It  docs 
nof.  in  the  i)reseut  case,  appear  (hat  the  aixunient  of  the  solicitor 
geiioral  was  in  any  respect  unfair  or  prejudicial  to  the  accused. 

7.  IrrcKularities  In  the  conduct  of  jurors  trying  a  criminal  case,  such 
as  the  Reparation  of  some  of  them  from  their  fellows,  and  the  like, 
are  not  cause  for  a  new  trial,  when  it  afflrmallve!y  appears  that 
no  injury  resulted  thercfron^  to  the  accused. 

S.  It  is  too  late  (o  poll  a  jury  after  the  sentence  of  the  court  has 
been  pronounced,     (a)  There  is  in  the  record  evidence  warrant- 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


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430 


AMERICAN  CRIMINAL  REPORTS. 


Ing  a  finding  that  the  request  to  poll  in  this  case  was  made 
after  sentence. 
(Syllabus  by  the  Court.) 

Error  to  Superior  Court,  Burke  County ;  Hon.  E.  L.  Brinson, 
Judge. 

James  Robinson,  convicted  of  manslaughter,  brings  error. 
Altiruied. 

Phil  P.  Johnston,  for  the  plaintiff  in  error. 

William  H.  Davis,  Solicitor  General,  and  A.  H.  Davis,  for 
the  State. 

Lumpkin,  P.  J.  The  accused,  James  Robinson,  a  white  man, 
was  indicted  for  the  murder  of  Gilbert  Ellison,  a  colortd  iiiau. 
A  verdict  of  voluntary  manslaughter  was  returned,  and  a  motion 
for  a  new  trial,  embracing  many  grounds,  was  made  and  over- 
ruled. We  do  not  think  that  any  of  these  gi'ounds,  or  that  all 
of  them  together,  would  justify  us  in  reversing  the  judi^niciit 
denying  a  new  trial. 

The  law  announced  in  the  first  hcadnote  presents,  in  con- 
densed form,  the  result  of  numerous  adjudications  by  this  cdui-r. 
We  do  not  care  to  cite  the  cases,  for  the  docti'ine  laid  down 
should  by  this  time  be  familiar  to  all  who  are  concerned  with 
the  administration  of  the  criminal  law.  The  attorney  for  the 
])laintiff  in  error  who  argued  the  case  here  recognized  the  cor- 
rectness of  this  doctrine,  and  had  no  objection  to  it.  Tlis  jiosi- 
tion  was  that  the  proper  application  of  it  would  entitle  his  client 
to  a  new  trial,  for  he  contended  that  the  evidence  for  the  State 
mafl,e  a  case  of  murder;  the  statement  of  the  accused,  one  of 
self-defense ;  and  that  there  was  no  middle  ground,  or  any  basis 
whatever  for  the  verdict  of  voluntary  manslaughter.  If  his 
premises  were  correct,  his  conclusion  Avould  follow;  but,  after  a 
thorough  and  careful  study  of  the  evidence  and  the  stateiiuMit, 
AVv^  are  unable  to  agree  with  him  as  to  these  matters.  A  long 
and  tedious  discussion  of  the  facts  would  be  of  no  practical  ben- 
efit to  any  one,  and  we  shall  therefore  simply  state  the  result  of 
our  examination  and  consideration  of  the  evidence  and  the  state- 
ment. The  testimony  offered  in  behalf  of  the  State  would  well 
have  warranted  a  finding  that  the  accused  connnitted  a  cold- 
blooded and  wanton  murder,  and  such,  we  believe,  is  the  truth 
of  the  case ;  but,  for  reasons  to  be  presently  stated,  a  verdict  of 


ROBINSON  V.  STATE. 


431 


nmvder  was  not  absolutely  demanded.  The  statement  of  the 
aceui'cd  would  have  warranted,  but  did  not  demand,  an  acquit- 
tal. There  was  some  little  evidence,  and  a  portion  of  the  state- 
ment, sufficiently  bringing  into  the  case  the  theory  of  mutual 
combat  to  authorize  a  charge  on  voluntary  manslaughter,  and  a 
conviction  of  this  offense  at  the  bauds  of  a  jury  who  wished  t(t 
lean  strongly  to  the  side  of  mercy.  We  therefore  a4)prnve  the 
charge  on  voluntary  manslaughter,  and,  on  the  merits  of  the 
case,  decline  to  disturb  the  jury's  finding.  There  was  too  much 
of  righteousness  in  it  for  us  to  set  it  at  naught. 

The  foregoing  disposes  of  the  main  contention  of  the  ])laintiff 
in  error,  and  our  rulings  upon  the  other  questions  involved  in 
the  case  are  briefly  stated  in  the  headnotes.  We  do  not  think 
further  comment  necessary,  excei)t  to  make  a  brief  reference  to 
the  point  decided  in  the  last  note.  The  well-settled  rule  that  a 
rcqu( st  to  poll  a  jury  should  be  made  before  the  memlxrs  of  it 
disperse  and  mingle  with  the  bystanders  is,  of  course,  based 
upon  the  idea  that  it  would  be  dangerous  to  allow  a  juror  who 
might  have  heard  something  calcxilated  to  change  his  mind  to 
have  an  opportunity  to  recede  from  a  verdict  to  which  he  had  re- 
ally agi'ced.  Certainly  nothing  would  be  more  likely  to  have 
such  an  effect  than  a  sentence  of  which  a  juror  did  not  approve. 
In  this  case  the  pimishment  inflicted  was,  we  are  informed,  a 
term  of  15  years  in  the  penitentiary,  and  it  would  not  have  done 
to  allow  the  jury  to  be  polled  after  they  knew  what  the 
judgment  of  the  court  was.  We  think  it  was  a  proper  one,  but 
no  man  can  tell  how  the  jurors  may  have  regarded  it,  or  that, 
after  it  was  announced,  some  of  them  might  not  have  desired  to 
annul  a  verdict  to  which  they  had  deliberately  assented. 

Judgment  affirmed. 

All  the  justices  concurring. 


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432  AMERICAN  CRIMINAL  REPORTS. 


State  v.  Thomas. 

65  N.  J.  L.  598—48  Atl.  Rep.  1007. 

Decided  Mar.  4.  1901. 

HoMiciDK — Graoes  of  THE  Offense:  Wheti  a  verdict  of  assault  and  bat- 
tery tvill  not  be  sustained  tipon  an  indictment  for  manslaughft'i: 

1.  "A  party  Indicted  for  a  crime  may  be  convicted  of  any  offense  of 

a  lower  grade,  provided  such  lower  offense  Is  included  within  the 
description  In  the  indictment." 

2.  Upon  an  indictment  for  manslaughter,  the  defendant  cannot  be 

convicted  of  assault  and  battery;  imless  the  language  of  the  in- 
dictment is  sufficient  to  charge  such  lesser  offense. 

3.  An  indictment  charging,  that  the  accused  did  feloniously  kill  and 

slay  M.  F.  C,  does  not  include  a  charge  of  assault  and  battery. 

4.  The  constitution  requires,  that,   in  all  criminal  prosecutions  the 

accused  shall  be  informed  of  the  nature  of  the  accusation. 

Court  of  Errors  and  Appeals,  of  Sew  Jersey. 

Error  to  the  Supreme  Court. 

Henry  Thomas,  indicted  for  manshiughtcr  and  convicted  of 
assault  and  battery.  Conviction  atHrnied  l)y  the  Su})reme  Court; 
but  revcrsicd  by  the  Court  of  Errors  and  Appeals.    Reversed. 

Chandler  W.  Riher,  Prosecutor  of  the  Pleas,  for  the  State. 

Thomas  S.  Henry,  for  the  plaintiff  in  error. 

The  opinion  of  the  court  was  delivered  by 

Dixox,  J.  The  defendant  below  was  indicted  for  manslaujrh- 
ter,  the  indictment  charging,  in  the  words  of  section  30  of  the 
Criminal  Procedure  act  (Pamph.  L.  181)8,  p.  BOG),  that  he  di<l 
feloniously  kill  and  slay  M.  F.  C.  On  trial  in  the  Essex  (Quar- 
ter Sessions  he  was  convicted  of  assault  and  battery,  and  on 
error  to  the  Supreme  Court  the  judgment  was  affirmed. 

The  principal  question  in  the  case  now  is,  Avhether,  on  such 
an  indictment,  a  judgment  for  assault  and  battery  can  be  sus- 
tained. 

At  common  law  manslaughter  was  a  felony  (4  Bl.  Com.  193), 
while  assault  and  battery  was  only  a  misdemeanor,  and  on  trial 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


STATE  V.  THOMAS. 


433 


for  a  felony  it  scorns  the  prisoner  could  not  l)o  convicted  of  a 
niisilciiKMiior.  Jicx  v.  Wcslbccr,  Str.  1133,  1137.  The  ivason 
fur  tills  rule  of  proooduro  wns  that  certain  rij^lita,  enjoyed  by  a 
(Icfcmliint  on  trial  for  a  niisdc  nieanor,  were  denied  to  one  ac- 
cused of  felony.  As  tlu>  reason  does  not  exist  in  New  Jersey, 
the  rule  docs  not  here  prevail.    Slate,  v.  Johnson,  1  Vrooni  185. 

IJiit  '.vliile  it  is  now  w(dl  settled  that  on  trial  for  a  common 
law  fclniiy  the  defendant  may  be  convicted  of  a  misdemeanor, 
it  is  e(|u:dly  clear  that  he  cannot  be  legally  convicted  of  any  of- 
fense which  is  not  distinctly  set  forth  in  the  indictment.  As 
wns  siiid  in  the  case  just  cited,  where  the  Supreme  Court  laid 
down  a  rule  which  was  thought  best  to  promote  the  public  good 
and  at  the  same  time  (le])rive  parties  of  no  substantial  rijiht: 
'"The  iutircsts  of  public  justice  require  that,  when  an  oft'ense 
clearly  and  distinctly  cliarrjed  in  the  indictment  is  made  out  by 
the  evidence,  tl:c  defendant  should  not  be  accpiitted.  .  .  . 
When  the  offense  is  chnrrjcd  and  proved,  there  can  be  no  sur- 
prise upon  the  defendant."  "A  party  indicted  for  a  crime  may 
be  convicted  of  any  otfense  of  a  lower  grad(>,  ]n'ovided  such  low- 
enjiFeiise  is  included  within  the  description  in  the  indictment." 

Tlie-e  expressions  are  in  harmony  with  our  constitutional  bill 
of  rifi'lils,  that  in  all  criminal  jn'oseeutions  the  accused  shall  have 
the  riglit  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tiim,  a  provision  similar  to  that  which  the  Supreme  Court  of 
ilassaehusQtts  declared  to  be  only  "an  ailirmation  of  the  ancient 
rule  of  the  eonnnOn  law,  that  no  one  shall  be  held  to  answer  to 
an  indictment  or  information  unless  the  crime  with  which  it  is 
hitcnded  to  charge  him  is  set  forth  with  precision  and  fullness." 
Commonwealth  v.  Blood,  4  Gray  31. 

It  is  urged  that  the  word  "slay"  imports  a  killing  by  direct 
personal  vif)lence,  and  hence  includes  assault  and  battery.  But 
uuder  our  statute  the  fornmla  "did  feloniously  kill  and  slay" 
charges  manslaughter  of  either  voluntary  or  involuntary  char- 
acter, and  involuntary  manslaughter  nuiy  be  committed  without 
criuiinal  assault  and  battery.  Thus,  in  State  v.  O'Brien,  3 
Vroom  1(5!),  the  defendant  was  convicted  of  manslaughter  for 
failing  to  perform  his  duty  as  switch-tender  of  a  railroad,  in 
consequence  whereof  a  train  ran  oif  the  track  and  a  passenger 
was  killed;  and  the  Supreme  Court  adjudged  that  his  convic- 
tion was  legal,  even  though  his  will  had  not  concurred  in  his 
omissi  in  of  duty.     Certainly,  if  death  had  not  ensued  from  his 

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AMERICAN  CRIMINAL  REPORTS. 


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nogHgence,  but  only  personal  injury,  a  charge  of  criminal  as- 
sr.ult  and  battery  could  not  have  been  sustained. 

Hence  the  most  that  can  be  said  of  the  present  indictment  on 
this  point  is,  that  it  charges  an  offense  of  which  assault  and  bat- 
tery may  or  may  not  bo  an  ingredient.  Such  an  accusation  (l(jos 
not  distinctly  and  precisely  inform  the  accused  that  he  is 
cliargc'd  with  this  lower  misdemeanor,  «8  is  required  by  the 
authorities  cited.  At  best,  the  charge  is  equivocal  and  inferen- 
tial only. 

The  judgment  should  be  reversed. 

For  affirmance. — Kuueger — 1. 

For  reversal. — Dix-  v,  Collixs,  Gaureston,  IIexduicksox, 
BoGEUT,  Adams,  ViJEDENnuKcn,  Voouuees — 8. 

Note  (By  J.  F.  G.):  The  Supreme  Court,  In  passing  on  this  case, 
cited  several  cases  and  statutes  which  shed  lijht  on  the  above.  In 
fact,  on  the  general  doctrine  as  to  grades  of  offenses,  the  two  courts 
agree.  As  the  opinion  of  the  Supreme  Court  is  brief,  .we  incorporate 
it  in  these  notes  as  follows: 

STATE  V.  THOMAS. 

62  N.  J.  L.  532—45  Atl.  Rep.  913. 

Decided  Feb.  26.  1900. 

Argued  at  the  November  term  1899  before  the  Chief  Justice  and 
Depue,  Van  Syckel  and  Llpplncott.  JJ. 

Thomas  S.  Henry,  for  the  plaintiff  in  error. 

Louis  Hood,  for  the  State. 

Per  curiam.  The  court  is  of  the  opinion  that  the  only  question  it 
is  necessary  to  discuss  in  this  case  is  whether,  under  an  indictment 
for  manslaughter  framed  according  to  the  forty-flfth  section  of  the 
criminal  procedure  act,  there  can  be  a  conviction  for  assault  and  bat- 
tery. 

The  rule  applicable  to  this  question  in  this  State  is  declared  in 
State  V.  Johnson,  30  N.  J.  Law  185,  to  be  "that  a  party  indicted  for 
a  crime  may  be  convicted  of  any  offense  of  a  lower  degree,  provi;leil 
Buch  lower  offense  Is  Included  within  the  description  in  the  ImlLt- 
ment,  without  regard  to  the  question  whether  it  was  or  was  not  te  Ii- 
nlcally  a  felony."  At  common  law  the  rule  was  that  the  crime 
proved  must  be  of  the  same  general  character  as  that  charged,  and 
that  an  indictment  for  felony  would  not  support  a  conviction  for  mi  ■ 
demeanor.  This  rule  had  its  origin  in  the  diversity  of  the  mode  ot 
proceeding  in  the  two  cases.  Such  diversity  does  not  exist  under  our 
procedure.  The  decision  in  State  v.  Johnson  rests  upon  the  fact  that 
the  technical  rule  of  the  common  law  does  not  prevail  here.  Our 
criminal  procedure  act  provides  "that  In  every  indictment  for  man- 
slaughter it  shall  be  sufficient  to  charge  that  the  defendant  did  fe- 
loniously kill  and  siay  the  deceased."     This  statute  gives  the  same 


STATE  V.  THOMAS. 


435 


effect  to  an  indictment,  so  drawn  in  the  statutory  language,  that  it 
v.ould  have  had  before  the  passage  of  the  statute.  If  the  offense  had 
teen  charged  in  the  language  required  by  the  common  law.  At  com- 
mon law  the  indictment  for  murder  and  manslaughter  charged  an 
assault,  anu  therefore  the  language  in  this  indictment  that  the  de- 
fendant did  feloniously  kill  and  slay  is  equivalent  to  alleging  that  he 
unlawfully  committed  an  assault.  In  Graves  v.  State,  45  N.  J.  Law 
203,  the  indictment  charged  that  the  defendant  "did  willfully,  feloni- 
ously, and  of  malice  aforethought  kill  and  murder  the  deceased";  and 
it  was  there  held  "that  no  right  of  the  defendant  was  violated,  nor 
any  privilege  of  his  disregarded  or  contravened,  by  convicting  him  of 
murder  In  the  first  degree  on  an  Indictment  which  described  the 
crime  merely  according  to  the  statutory  form."  So,  in  Tifus  v.  State, 
4!)  X.  J.  Law  30,  7  Atl.  621,  in  an  indictment  for  murder,  when  the 
fact  that  the  killing  "was  In  the  commission  of  a  rape  was  relied  on 
to  make  the  killing  murder  in  the  first  degree,  a  count  in  the  general 
form  authorized  by  the  criminal  procedure  act  was  held  to  be  suffi- 
cient. The  conclusion  from  these  adjudications  is  that  an  indictment 
in  the  statutory  form  by  implication  charges  all  the  facts  which  at 
common  law  were  necessary  to  be  set  forth  to  constitute  the  crime, 
and  that  thereby  the  defendant  was  not  deprived  of  any  right,  under 
the  constitutional  provision  "that  In  all  criminal  prosecutions  the  ac- 
cused shall  be  Informed  of  the  nature  and  cause  of  the  accusation." 
There  was  therefore  no  error  in  the  charge  of  the  court  that  the  jury 
under  this  form  of  indictment  could  convict  the  defendant  of  assault 
and  battery,  and  he  suffered  no  manifest  wrong  and  injury  in  being 
convicted  of  the  lesser  offense. 


Bearing  upon  the  questions  reviewed  in  the  above  opinions,  we  here 
give  three  English  cases;  two  of  them  b^ng  Crown  Cases  Reserved. 
The  text, syllabi  (when  given),  spelling  and  capitals  are  as  they  ap- 
pear in  the  English  reports.    They  are  as  follows. 

JOYNER'S   CASE. 

Kelyng  29. 

Newgate  Sessions  1664;  16  Charles  2. 

At  the  Sessions  for  Ncicgate,  20  April  1061.  IC  Car.  2.  The  Chief 
Justice  Hyde,  myself,  and  Justice  Wylde  present.  One  John  Joyner 
was  indicted  for  stealing  a  Copper,  and  upon  the  Evidence  it  ap- 
peared the  Copper  was  fixed  to  the  Freehold,  and  he  broke  it  up  and 
carried  it  away;  And  thereupon  the  Jury  was  directed  by  the  Court, 
that  he  was  not  guilty,  because  it  was  no  Felony.  But  my  Lord  Chief 
Justice  Hyde  said,  that  It  being  so  rank  a  Trespass  the  Jury  might 
find  It  Specially,  that  he  did  take  up  the  Copper,  but  that  it  was  fixed, 
and  so  leave  it  to  the  Court,  to  judge  whether  Felony  or  no,  and  there- 
upon the  Court  judge  it  Trespass,  and  fine  him,  and  give  him  other 
Punishment  fit  for  such  a  Trespass,  as  the  Court  did  in  Holmes's 
Case,  Cro.  1  Part.  376,  377.  But  my  Brother  Wylde  and  I  differed  In 
that  Point,  and  said  it  was  not  like  Holmes's  Cuse;  For  there  all  the 


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AMERICAN  CRIMINAL  REPORTS. 


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special  Matter  was  expressed  in  the  Indictment,  viz.  That  Holmes 
being  possessed  of  a  House  In  London,  did  FeJonice  set  on  Fire  his 
own  House  and  burn  it  with  intent  to  burn  the  Houses  of  other  Men 
near  adjoining,  and  of  this  the  Jury  found  him  guilty,  and  before 
Judgment,  because  the  Court  doubted  whether  it  was  Felony  or  no, 
the  Record  was  removed  into  the  King's-Bench,  and  the  Advice  of  all 
the  Judgos  taken,  and  agreed,  that  it  was  no  Felony.  And  thereupon 
all  the  special  Matter  being  in  the  Indictment,  and  he  found  guilty 
of  that  as  it  was  laid,  in  Law  it  being  no  Felony,  he  was  found  guilty 
of  the  Trespass,  for  which  the  C3ourt  gave  Judgment  against  him. 
But  in  this  Case  he  is  indicted  generally  for  sttialing  a  Copper,  which 
may  not  be  fixed,  and  if  the  Jury  should  find  him  guilty  generally,  the 
Court  must '  give  Judgment  as  for  Felony.  For  the  special  Matter 
that  it  was  fixed  is  not  laid  in  the  Indictment.  And  it  would  be 
dishonourable  for  the  Court  in  so  plain  a  Case  as  this,  to  suffer  the 
Jury  to  find  a  special  Verdict,  so  all  agreed  that  the  Jury  should  find 
him  not  guilty,  which  was  done  accordingly.  Vide  1  H.  7.  10,  6.  Though 
Felony  includes  Trespass,  yet  if  the  Party  indicted  be  discharged  of 
the  Felony,  which  is  Principal,  he  is  thereby  acquitted  of  the  Tres- 
pass, tamen  Quaere  of  this,  and  Vide  the  Book. 

REGINA  vs.  GEORGE  ARCHER  AND   FOUR  OTHERS. 

2  Moody  Crown  Cases  360. 

1843. 

On  an  indictment  against  several  for  feloniously  cutting,  &c.,  one 
may  be  found  guilty  of  an  assault  only,  and  others  of  the  felony,  in 
the  same  assault. 

This  was  an  indictment  for  feloniously  cutting  and  wounding  one 
George  Collier  with  intent  to  murder,  disable,  and  do  grievous  bodily 
harm.  In  May  1841.  The  four  other  persons  Indicted  were  tried  before 
Mr.  Serjeant  Taddy,  at  the  Summer  assizes,  for  the  coimty  of  Surrey, 
in  the  year  1841,  and  were  all  convicted  of  the  felony.  The  present 
prisoner,  George  Archer,  was  at  that  time  out  upon  ball,  and  did  not 
surrender. 

He  was  arrestfed  early  in  the  year  1843,  and  was  tried  before  Mr. 
Justice  Patteson,  at  the  Spring  assizes,  1843,  when  the  Jury  acquitted 
him  of  the  felony  and  found  him  guilty  of  the  assault  under  the  11th 
section  of  1  Vict.  c.  85.  The  assault  of  which  the  prisoner  Archer  was 
found  guilty,  was  a  very  violent  attack  upon  the  prosecutor  at  the 
Epsom  races,  by  thirty  or  forty  persons,  in  which  he  was  severely 
wounded,  and  Is  the  same  assault  for  which  the  other  four  prisoners 
were  found  guilty  of  felony  upon  this  same  indictment;  but  the  pris- 
oner Archer,  being  only  sixteen  years  of  age,  and  not  having  taken 
so  prominent  a  part  as  the  other  prisoners,  the  Jury  negatives  any 
felonious  intent.  The  learned  Judge  respited  the  judgment  in  order 
to  take  the  opinion  of  the  Judges,  whether  upon  the  same  indictment 
for  feloniously  cutting  and  wounding  against  several  persons,  one  may 
be  found  guilty  of  the  felony  and  another  of  the  misdemeanor. 


STATE  V.  THOMAS. 


437 


The  learned  Judge  was  informed  that  it  had  been  ruled  by  Mr. 
Barcn  Gurney,  on  the  Home  Circuit,  and  by  Lord  Chief  Justice  Tlndal 
at  the  Central  Criminal  Court,  that  such  conviction  would  be  wrong, 
and  that  such  a  verdict  amounted  to  a  general  acquittal  of  the  prisoner 
who  was  found  not  guilty  of  the  felony;  but  the  names  of  the  sup- 
jicsed  cases  were  not  cited,  nor  had  the  learned  Judge  been  able  to 
find  them,  unless  that  before  Lord  Chief  Justice  Tindal,  bo  li.  v. 
M'Phane  and  others  (1  Carr.  &  Marshmann,  212),  which,  however, 
turned  on  another  point. 

See  Hawk.  P.  C.  b.  ii  c.  47.  s.  8;  Sid.  171,  R.  T.  Turner  and 
others;  2  Harg.  State  Trials,  526.  On  an  indictment  for  burglary  and 
stealing,  one  cannot  be  found  guilty  of  burglary,  another  for  stealing, 
on  the  same  indictment  and  the  same  evidence. 

But  see  Plow.  100,  R.  v.  Salisbury  and  others,  Russel  on  Crimes,  s. 
431,  on  indictment  for  murder  against  two,  one  may  be  found  guilty 
of  murder,  the  other  of  manslaughter.  1  Hale,  440;  1  Carr.  &  Marsh- 
nifin,  ISO,  R.  ^.  Phelps  and  others;  ibid.  212,  R.  v.  M'Phane  and  others; 
ibid.  597.  R.  v.  Crumpton  ;  9  C.  &  P.  480,  R.  v.  St.  George. 

The  learned  Judge  requested  the  opinion  of  the  Judges  on  the  point. 

This  case  was  considered  at  a  meeting  of  the  Judges  in  Easter 
term,  1843,  and  they  are  unanimously  of  opinion  that  the  conviction 
was  good,  (a)  There  may  be  a  joint  assault  with  a  felonious  intent 
in  some  only. 

(a)  R.  V,  Buttencorth  and  others,  Russ.  &  Ry.  520. 

REGINA  V.  JOHN   PHELPS. 
2  Moody  Crown  Cases  308. 
1841. 

On  an  Indictment  for  murder  against  several,  one  cannot  be  con- 
victed of  an  assault  committed  on  the  deceased  in  a  previous  scuffle, 
such  assault  not  being  in  any  way  connected  with  the  cause  of  death. 

The  prisoner  indicted  (with  others)  was  tried  before  Mr.  Justice 
Coltman,  at  the  Summer  assizes,  1841,  at  Gloucester,  for  the  wilful 
murder  of  John  Overbury. 

Overbury  had  been  charged  by  James  Harding,  a  constable,  to  assist 
him  in  securing  one  Norris,  whom  he  had  apprehended  on  suspicion 
of  having  stolen  some  potatoes  from  a  garden. 

Overbury  gave  his  assistance  as  well  as  he  could  to  the  constatie; 
a  scuffle  ensued,  Norris  making  violent  efforts  to  rescue  himself,  and 
some  of  the  crowd  taking  part  in  his  favor.  The  prisoner,  Phelps, 
in  particular,  was  proved  to  have  struck  Overbury  once  or  twice,  and 
to  have  knocked  him  down. 

After  striking  these  blows  Phelps  went  away  to  his  own  home  and 
took  no  further  part  in  the  affray;  about  a  quarter  of  an  hour,  or  from 
that  time  to  half  an  hour,  after  Phelps  had  gone  away,  Overbury,  who 
had  remained  near  the  spot  where  the  assault  by  Phelps  had  taken 
place,  was  again  assaulted  by  some  persons  who  had  never  been 
identified,  and  on  that  occasion  received  an  injury  of  which  he  died 


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438 


AMERICAN  CRIMINAL  REPORTS. 


on  the  spot  There  was  no  distinct  evidence  to  show  what  led  to  this 
second  assault  on  Overbury,  or  to  connect  it  with  the  prior  assault 
by  Phelps. 

The  Jury  on  this  evidence  acquitted  Phelps  of  the  felony,  but  found 
him  guilty  of  an  assault.  But  entertaining  some  doubt  whether  under 
the  circumstances  the  prisoner  could  legally  be  convicted  of  the  ps- 
sault,  the  learned  Judge  respited  the  judgment,  and  requested  vie 
advice  of  the  Judges  upon  the  case. 

The  counsel  for  the  prisoner  cited  Rex  v.  Poole,  9  Carr.  &  P.  728; 
Rex  V.  Outteridge,  id.  471;  Rex  v.  St.  George,  Id.  483. 

This  case  was  considered  at  a  meeting  of  the  Judges  In  Michaelmas 
term,  1841;  and  they  were  unanimously  of  opinion  that  the  conviction 
was  wrong.  The  assault  must  be  such  as  forms  one  constituent  nart 
of  the  greater  charge  of  felony,  not  a  distinct  and  separate  assault 
as  this  was. 


State  v.  Oake.s. 

95  Me.  369—50  Atl,  Rep.  28. 

Decided  July  24,  1901. 

Homicide — Gbades  or  the  Offence — Akgu.ment  of  Coitnsel — Instuuc- 
TioNs:  Necessity  to  insti'uct  as  to  the  grades  of  homicide — 
Theory  of  accused's  counsel  no  waiver — Rights  of  accused — 
Statute. 

1.  "A  person  on  trial  for  mi'rder  must  be  considered  as  standing 

upon  all  his  legal  rights,     id  waiving  nothing." 

2.  According  to  the  statutes  of  Maine  It  Is  the  duty  of  the  judse  to 

Instruct  the  Jury,  as  to  the  grades  of  homicide;  even  though 
counsel  for  the  accused  bases  his  argument  on  the  theory  of 
entire  Innocence,  and  makes  no  reference  to  the  grades  In  homi- 
cide. Counsel  by  his  theory  advanced  In  argument  does  not 
waive  a  right  which  the  law  gives  to  the  accused. 

Exceptions  from  Supreme  Judicial  Court,  Aroostook  County. 

Electus  Oakes,  convicted  of  murdei*,  excepts  and  moves  for 
a  new  irial.    Exceptions  sustained. 

Argued  before  Wiswkll,  C.  J.,  and  Whiteiiouse,  Stuout, 
Fooler,  and  Peabodv,  JJ. 

Don  A.  II.  Powers,  for  defendant. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


STATE  V.  OAKES. 


439 


Wm.  T.  Haines,  Attorney  General,  for  the  State. 

FoGLEH,  J.  The  rcspondf^at,  Electus  Oakes,  was  indicted 
and  trifd  for  the  murder  of  his  son,  Oliver  Oakcs. 

The  jury  returned  a  verdict  of  guilty  of  murder  in  the'  first 
degree. 

Tlio  case  comes  to  this  court  upon  appeal,  and  also  upon 
exceptions  to  instructions  given  to  the  jury  by  the  presiding 
justice. 

The  respondent,  a  man  80  years  of  age,  admitted  that  ho 
shot  and  killed  his  son,  hut  contended  that  the  killing  was  done 
in  defense  of  Ivis  own  life  and  that  of  his  wife.  He  testified 
that  cm  the  morning  when  the  shooting  occurred,  before  he  had 
risen  from  his  bed,  he  lieard  loud  words  between  his  son  and 
his  wife,  who  had  risen  before  him ;  that  he  heard  his  son 
threaten  to  take  the  life  of  his  (the  defendant's)  wife;  that 
he  heard  the  sound  of  rocks  thrown  against  his  house;  that  he 
lii.ird  the  discharge  of  a  gun  and  heard  his  wife  scream;  that, 
hi;vi!ig  arisen  and  partly  dressed  himself,  he  went  to  the  door 
I  if  ills  house,  and  saw  his  son  on  the  oi)])()site  side  of  the  road, 
in  front  yf  his  son's  house,  loading  a  gnin  which  he  then  held, 
at  the  same  time  threatening  to  liave  their  hearts'  blood,  and 
thereupon  he  got  his  own  gun  and  shot  and  killed  his  son,  as 
he  says,  to  protect  his  own  life  and  that  of  his  wife.  The 
respondent's  wife  in  her  testimony  sxibstantially  corroborated 
the  testimony  of  her  husband. 

Witnesses  for  the  State  gave  a  different  version  of  the  affair, 
so  far  as  the  language  and  conduct  of  the  son.  are  concerned, 
testifying  that  the  son  made  no  such  threats  as  are  attributed 
to  liim  by  the  respondent  and  his  wife,  and  that  he  had  no  gun 
at  the  time. 

The  presiding  justice,  in  the  course  of  his  charge,  gave  to 
the  jury  correct  dclinitions  of  the  crimes  of  murder  and  man- 
slaughter, and  correctly  instructed  them  as  to  the  distinction 
l)etwee  1  murder  in  the  first  degree  and  murder  in  the  seccnid 
degree,  and  instructed  them  properly  in  regard  to  the  law  of 
self-defense. 

The  instructions  of  the  presiding  iustice  to  which  the  re- 
spondent excepts  are  as  follows : 

**It  is  the  unlawful  killing  of  a  human  being  which  is  de- 
clared to  be  murder,  and  the  unlawful  killing,  as  I  have  already 


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440 


AMERICAN  CRIMINAL  REPORTS. 


indicated  to  you  from  the  statute,  may  be  murder  in  one  dcgioo 
or  the  other,  or  it  may  be  manslaughter;  manshuighter  luiin;' 
the  unhwvful  killing  where  there  is  no  malice,  cither  expressscil 
or  implied,  and  where  the  act  is  done  upon  sudden  provocatinu 
before  a  man  has  time  to  cool  or  deliberate,  or  form  an  intelli- 
gent intention.  In  this  case  the  State,  by  its  learned  attorney 
gi'ncral,  has  taken  the  position,  as  1  understand  him,  that  this 
was  a  deliberate,  willful,  and  express  act  of  the  defendant ;  lliat 
he  meant  to  do  what  he  did  do;  and  that  there  was  no_^e.\ouso 
in  law  for  what  he  did  do, 

'*]f  it  was  the  deliberate,  sedate  intent,  of  the  prisoner  to  kill 
the  deceased,  and  there  was  no  justification  for  it,  no  Iciinl 
excuse  for  it,  then,  gentlemen,  that  would  bo  evidence  frnm 
which  you  would  be  authorized  to  find  express  ujalice  afore- 
thought, and  the  defendant  should  be  found,  in  such  iv  case  as 
that,  guilty  of  nuinh  r  in  the  fii'st  degree. 

"I  do  not  remember  any  evidence  in  the  case,  gentlemen, 
which  calls  upon  nii'  to  instruct  3'ou  in  regard  to  implied  malice, 
because  that  is  not  the  position,  as  I  understand  it,  presented 
by  the  State,  or  presented  by  the  evidence ;  and  it  is  claimed 
by  the  learned  counsel  for  the  respondent  that  there  is  no  evi- 
dence in  this  case  which  will  warrant  you  in  finding  a  verdict 
of  manslaughtci'. 

"There  is  no  evidence  that  it  was  done  in  such  heat  of  pas- 
sion or  upon  such  sudden  provocation  and  with  such  alwcnce  of 
malice  as  to  reduce  the  crime  to  the  degree  of  manslaughtci'. 

"Gentlemen,  so  far  as  I  rememl)er  the  case,  there  is  no  evi- 
dence which  I  think  calls  ujion  me  to  submit  the  (piestion  of 
manslaughter  to  you.  The  defendant  says  there  is  a  perfect  and 
absolute  defense.  I  do  not  understand  him  to  claim  it  was  an 
unlawful  killing  done  in  heat  or  excitement  under  such  provoca- 
tion as  would  show  absence;  of  malice  to  reduce  it  to  man- 
slaughter. As  I  understand  it,  gentlemen,  the  question  prac- 
tically is  whether  the  respondent  is  guilty  of  murder,  or  whether 
he  is  not  guilty  at  all." 

In  closing  his  charge  the  court  says : 

"Now,  in  this  sohnin  case  yon  take  these  witnesses,  search 
tliem,  weigh  them,  remove  from  their  testimony  that  which  you 
do  not  believe  on  both  sides,  and  then,  taking  all  the  evidence 
in  the  case,  on  both  sides, — everything, — then  say  whether  you 


STATE  V.  OAKES. 


441 


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is 
at 


find  beyond  a  reasonable  doubt  that  the  respondent  at  the  bar 
is  guilty  or  not  guilty  of  murder  in  the  first  deg.ree. 

*'If  you  find  him  guilty  of  murder  in  the  first  degree,  you 
will  say  so.  If  you  find  not  guilty,  you  will  say  so  with  equal 
readiness  and  independence." 

We  think  the  instructions  t'^  which  exceptions  are  taken  are 
erroneous  so  far  as  they  relate  to  the  degree  of  criminality.  It 
was  the  province  of  the  jury  to  determine  the  guilt  or  inno- 
cence of  the  respondent,  and,  if  they  found  him  guilty  of  mur- 
der, to  determine  the  nature  of  the  crime  of  w4iich  he  was  found 
guilty,  whether  manslaughter  or  murder,  and,  if  murder, 
whether  in  the  first  or  second  degree. 

Itev.  St.  c.  118,  §  4,  is  as  follows: 

"The  jury,  finding  a  person  guilty  of  murder,  shall  find 
whether  he  is  guilty  of  murder  in  the  first  or  second  degree. 
When  a  person  is  found  guilty  of  murder  by  confession  in  open 
court,  the  court,  from  testimony,  shall  determine  the  degree  of 
murder,  and  sentence  accordingly." 

In  the  opinion  given  to  the  executive  council  in  the  case  of 
State  V.  Cleveland, ^h\  Justice  Danforth  and  Mr.  Justice  Wal- 
ton, referring  to  the  foregoing  section  of  the  statute,  say  (58 
Me.  r)<U)  : 

"By  that  section  it  is  provided  that  the  jury,  if  the  case  goes 
to  them,  or,  upon  confession  of  the  accused,  the  court,  upon 
testimony,  are  to  determine  the  degree  of  the  murder.  This 
provision  is  peremptory  and  unqualified  in  its  terms,  leaving 
nothing  to  inference,  but  comprehending  all  cases,  whatever 
may  be  the  form  of  the  indictment.  The  provision  is  thus 
express,  that  it  may  be  certain  that  the  jury  have  not  only  had 
their  attention  called  to  the  matter,  but  that  they  have  con- 
sidered and  decided  this  important  question  of  fact.  And  why 
should  there  be  any  hesitation  in  giving  full  force  to  a  provi- 
sion of  law  so  explicit  i  It  ii  not  a  matter  of  mere  form,  but 
a  question  of  fact  vital  to  the  issue,  and  one  to  be  settled  by 
the  testimony." 

Though  this  may  not  be  regarded  as  authority,  yet,  coming 
from  two  so  eminent  jurists,  and  being  so  in  accord  with  our 
(»wn  views,  we  feel  constrained  to  adopt  the  language  as  a  true 
exposition  of  the  important  and  peremptory  terms  of  the  statute. 

The  instruction  that  the  jury  should  determine  whether  the 


...Ii   .j. 


■<i] 


I  \"' 


'A  ■ 


442 


AMERICAN  CRIMINAL  REPORTS. 


respondent  was  not  guilty,  or  guilty  of  murder  in  the  first 
degree,  took  from  the  jury  the  important  question  of  fact  as  to 
the  degree  of  criminality,  and  was  clearly  repugnant  to  the 
imperative  terms  of  the  statute  above  recited. 

In  Rhodes  v.  Com.,  48  Pa.  390,  the  respondent  was  indicted 
and  tried  upon  the  charge  of  murder.  The  statute  provided 
there,  as  here,  that  the  jury,  if  tliey  found  the  person  accused 
guilty  of  murder,  should  "ascertain  in  their  verdict  whether  it 
be  murder  in  the  first  or  second  degree."  The  presiding  jus- 
tice instructed  the  jury  as  follows:  "If  you  find  the  defendant 
guilty,  your  verdict  must  state,  'Guilty  of  murder  in  the  first 
degree,  in  manner  and  form  as  he  stands  indicted.'  "  This 
was  held  tf)  be  error.  The  court  says  (page  398)  :  "The  statute 
created  a  tlistinction,  unknown  to  the  common  law,  between 
murder  in  the  first  and  second  degrees,  and,  by  very  precise 
words,  made  it  the  exclusive  right  and  duty  of  the  jury  to 
ascertain  the  degree  wl;en  the  conviction  resulted  from  a  trial." 
.  .  .  "It  is  vain  to  argue  that  the  judge  was  more  compe- 
tent to  fix  the  d^ree  than  the  jury,  or  that  the  circuinstanco 
proved  the  crime  to  be  murder  in  the  first  degree,  if  murder  at 
all,  for  the  statute  is  imperative  that  commits  the  degree  to  the 
jury." 

To  the  same  effect  are  Lane  v.  Com.,  59  Pa.  St.  371 ;  State  v. 
Dowd,  19  Conn.  B88;  Ilopt  v.  Utah,  110  U.  S.  574,  4  Sup.  Ct. 
202,  28  L.  Ed.  262. 

See,  also,  State  v.  Meyer,  58  Vt.  457;  BaTcer  v.  People,  40 
Mich.  411 ;  Panton  v.  People,  114  111.  505,  2  N.  E.  411. 

In  the  case  at  bar  it  appears  from  the  charge  that  the  counsel 
for  the  respondent,  in  his  argument,  contended  that  his  client 
was  guilty  of  no  offense,  and  did  not  contend  in  the  progress  of 
the  case  or  in  the  argument  that,  if  the  respondent  should  be 
found  guilty,  it  should  be  of  a  less  degree  than  murder  in  the 
first  degree.  Conceding  this,  we  do  not  think  it  can  be  regarded 
as  a  waiver  by  the  respondent  of  any  rights  guaranteed  to  him 
by  law. 

A  person  on  trial  for  murder  must  be  considered  as  standing 
upon  all  his  legal  rights,  and  waiving  nothing.  Hopt  v.  Utah, 
supra;  Cancemi  v.  People,  18  X.  Y.  128;  Pertect  v.  People, 
70  111.  171 ;  Dempsey  v.  People,  47  111.  323,  325. 

Our  conclusion  is  that  the  exceptions  must  be  sustained. 


, 


STATE  V.  SHUFF. 


443 


This  conclusion  renders  it  unnecessary  for  us  to  examine  the 
questions  raised  on  appeal. 
Exceptions  sustained. 

Note.— Consult  Index  In  this  volume  under  heading:    Grades  of  Of- 
fences.   Same  subject  will  be  given  spaco  In  next  volume. 


State  v.  Siiuff. 

9  Idaho  115—72  Pac.  Rep.  663. 

Decided  May  28,  1903. 

Homicide — Tbiai, — Indictment — Insanity,  etc.:  Sufficiency  of  Indict- 
vtent — Evidence  explaining  possession  of  deadly  weapon — Im,' 
proper  remarks  and  instructions  by  the  Judge,  on  the  evidence. 
Statements  of  accused's  counsel,  ?io  evidence  against  him.  In- 
structions as  to  murder  in  the  first  degree.  Instructions  as  bur- 
den of  proof  on  plea  of  insanity.   Reasonable  doubt, 

1.  An  Indictment  that  charges  that  the  assault  was  unlawfully,  fe- 

loniously, willfully,  deliberately,  premeditatedly,  and  of  his  malice 
aforethought,  made  upon  deceased.  Is  sufficient  under  the  statute. 

2.  When  the  prosecution  shows  that  the  killing  was  done  with  a 

certain  gun,  the  defense  may  show  on  cross-examination  any 
fact  that  will  tend  to  explain  why  defendant  had  the  gun  at  the 
time  of  the  homicide. 

3.  It  is  error  for  the  court  to  use  any  language  In  the  hearing  of  the 

jury  that  can  be  construed  Into  a  comment  on  the  weight  of 
evidence. 

4.  Where  It  is  shown  that  a  witness  has  had  an  acquaintance  of  six 

years,  or  even  less,  with  the  party  said  to  be  Insane,  and  It  is 
also  shown  that  he  ht*^  observed  peculiarities,  it  Is  error  to 
reject  such  evidence. 

5.  Where  the  plea  is  Self-defense,  coupled  with  insanity,  any  wltnesd 

who  has  known  the  defendant  sufficiently  to  give  an  opinion  as 
to  his  sanity  or  insanity  may  give  such  opinion;  the  jury  are 
to  determine  whether  such  opinion  has  any  foundation  or  not. 

6.  It  Is  not  error  for  the  court  to  Instruct  the  jury  that  there  need 

be  no  appreciable  space  of  time  between  the  intention  to  kill 
and  the  act  of  killing.  They  may  be  as  instantaneous  as  suc- 
cessive thoughts  of  the  mind.     It  is  only  necessary  that  the  act 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  ia 
this  volume. 


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AMERICAN  CRIMINAL  REPORTS. 


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of  killing  be  preceded  by  a  concurrence  of  will,  deliberation,  and 
premeditation  on  the  part  of  the  slayer,  and  if  such  is  the  case, 
the  killing  is  murder  of  the  first  degree,  etc. 

7.  It  is  error  to  give  an  Instructicn  "that,  to  establish  n  defonse  on 

the  ground  of  insanity,  it  must  be  clearly  proved  by  the  de- 
fendant by  a  preponderance  of  evidence  given  upon  the  trial." 

8.  It  is  error  for  the  court  to  Instruct  the  jury  "that  in  nil  other 

matters  except  that  of  insanity  the  defendant  la  entitled  to  every 
reasonable  doubt."  " 

9.  It  is  error  for  the  court  to  instruct  the  Jury  that  statements  made 

by  counsel  for  defendant,  in  presence  of  the  jury,  In  the  conduct 
of  the  trial,  in  so  far  as  they  are  admissions  against  the  de- 
fendant, may  be  considered  by  them. 
(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Shoslionc  County;  Hon.  A.  E. 
Majhcw,  Judge. 

Cljalmcf  £.  Shuff,  convictecl  of  uiurder,  appeals.     IJeversed. 

Charles  E.  Miller,  for  the  appellant. 

John  A.  Bagley,  Attorney  General,  for  the  State. 

Stock.slaokr,  J.  This  is  an  ajipcal  from  the  District  Court 
of  Shoshone  County.  On  the  12th  day  of  March,  10(»2,  the 
grand  jury  of  that  county  returned  an  indictment  against  tlio 
defendant,  charging  him  with  the  murder  of  one  Eugene  Klein. 

The  indictment  charges  that  Chalmer  E.  Shuif  on  the  lUli 
day  of  NovemlK>r,  A.  1).  1JM)1,  and  before  the  tinding  of  this 
indictment,  at  the  County  of  Shoshone,  and  State  of  I(hdio,  did 
unlawfully,  willfully,  deliberately,  premeditatedly,  and  of  his 
malice  aforetljought  make  an  assault  on  one  Eugene  Ivlcin,  with 
a  certain  gun,  commonly  called  a  rifle,  which  then  and  there  was 
loaded  with  gunpowder  and  one  leaden  bullet,  and  by  him, 
the  said  Chalmer  E.  Shuff,  had  and  held  in  both  hands,  he,  the 
said  Chalmer  E.  Shuff,  did  then  and  there  unlawfully,  felon- 
iously, willfully,  deliberately,  premeditatedly,  and  of  his  malice 
aforethought  shoot  off  and  discharge  at  and  upon  the  said 
Eugene  Klein,  thereby  and  by  thus  striking  the  said  Eugene 
Klein  with  the  said  leaden  bullet,  inflicting  on  and  in  the  back 
of  the  said  Eugene  Klein  on  his  right  side,  just  Ik'Iow  the 
shoulder  blade,  one  mortal  wound,  of  which  said  mortal  wound 
the  said  Eugene  Klein  then  and  there  died.  And  so  the  said 
Chalmer  E.  Shuff  did  in  manner  and  form  aforesaid  unlaw- 
fully, feloniously,  willfully,  deliberately,  premeditatedly,  and 


of 


STATE  V.  SHUPP. 


445 


ise, 

on 
do- 


of  hia  malico  aforethought  kill  nnd  murder  the  said  Eugcuo 
Klein,  cuntrary  to  the  form  of  the  statutes,  etc. 

To  the  suthcioncy  of  this  indictment  a  demurrer  was  inter- 
posed hy  counsel  for  defendant:  (1)  That  the  facts  stated  in 
Huid  indictment  do  not  constitute  a  puhlic  offense.  (2)  That 
the  said  indictment  does  not  conform  to  sections  7677,  7fi7S, 
nnd  7<»7i>  of  the  Revised  Statutes  of  1887,  in  that  it  docs  not 
a]ipenr  inmi  the  said  indictment  with  what  intent  this  defend- 
ant iiiiide  the  assault  therein  charged. 

Demurrer  was  submitted  to  the  court  on  the  14th  day  of 
!Marcli,  1J)02.  and  on  the  s.ime  day  ovenulod  and  denied,  to 
which  ruling  of  the  court  the  def'ndant  duly  excepted,  and 
niAv  assigns  the  ruling  of  the  court  as  error. 

After  a  trial  in  the  District  Court  of  said  Shoshone  Tounty 
on  the  lilth  day  of  April,  1U02,  a  verdict  was  returned  by  the 
jury  as  follows: 

"We,  the  jury  in  tlie  above  entitled  cause,  find  the  defendant 
guilty  of  murder  of  the  first  degree,  as  charged  in  the  indict- 
ment.    Bernard  Smith,  Foreman." 

On  the  2()th  day  of  April,  11)02,  the  judgment  of  the  court 
was  j)ronounced,  which  provided  that  on  the  24th  day  of  June, 
]!M)2,  the  warden  of  the  State  Penitentiary  of  tho  State  of 
Idaho,  iH'tween  the  hours  of  S  o'clock  a.  m.  and  2  o'clock  p.  m,, 
within  the  wrdia  of  said  penitentiary,  should  execiite  the  judg- 
ment Ity  hanging  the  defendant  by  the  neck  imtil  he  was  dead. 
A  statement  was  settled  and  allowed  by  the  court,  also  two 
hills  of  exceptions,  one  involving  the  ruling  of  the  court  on  tho 
demurrer ;  the  other  the  ruling  of  the  court  refusing  to  grant 
the  defeiulant  a  new  trial. 

Appellant  assigns  12  errors,  and  we  will  take  them  up  in 
the  order  presented  by  his  brief.  The  first  cue  is :  "The  court 
trred  in  overruling  and  denying  apj)ellant's  demurrer  to  the 
indictment  and  his  motion  in  arrest  of  judgment." 

Counsel  for  appellant  ably  and  earnestly  urges  that  the  in- 
dictment is  insufficient  to  support  a  verdict  of  murder  in  the 
first  degree.  He  says:  "It  does  not  charge  that  the  appellant 
conmutted  the  assault  with  the  deliberate  and  premeditated  in- 
tention of  killing  the  deceased,  nor  does  it  appear  that  the 
wounding  was  willful,  deliberate,  premeditated  and  of  his  mal- 
ice aforethought."  In  support  of  this  contention,  he  calls  our 
attention  to  Encyclopedia  of  P.  &  P.  vol.  10,  p.  124 ;  State  v. 


■  v.- 


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446 


AMERICAN  CRIMINAL  REPORTS. 


Mclcalf,  17  Mont.  417,  43  Pac.  182 ;  Holt  v.  Territory,  4  Old. 
76,  43  Pac.  1083 ;  State  v.  Brown,  21  Kan.  38 ;  People  v.  O'Cal- 
laghan,  2  Idaho,  156,  9  Pac.  414;  Leonard  v.  Territory,  2 
Wash.  T.  381,  7  Pac.  872;  Kain  v.  State,  8  Ohio  St.  307; 
State  V.  Thompson,  26  Ark.  325;  State  v.  Blan,  69  Mo.  317. 

We  have  carefully  examined  these  authorities,  and  we  find 
some  of  them  uphold  the  contention  of  appellant,  while  others 
do  not.  In  the  case  of  State  of  Idaho  v.  Ellington,  decided  by 
this  court,  and  reiiorted  in  43  Pac,  at  page  60,  we  Hud  the 
indittmcnt  in  almost  the  identical  language  of  the  one  before 
us. 

In  the  Ellington  Case  the  defendant  was  found  guilty  of 
mTirdor  in  the  first  degre<',  and  the  death  penalty  pronounced. 
]V[r.  Justice  Huston,  speaking  for  the  court,  among  other  tliiui^s 
said:  "We  are  clearly  of  the  opinion  that  under  the  provisions 
of  section  7687,  Rev.  St.  Idaho,  which  is  as  follows:  No 
indictment  is  insufficient  nor  can  the  trial,  judgment  or  other 
proceeding  thereon  he  affected  by  reason  of  any  defect  or  ini- 
j)erfection  in  matter  of  form  which  does  not  tend  to  the  preju- 
dice or  substantial  right  of  the  defendant  upon  the  merits — tlic 
objections  urged  by  counsel  for  the  defendant  cannot  obtain."' 

Counsel  for  defendant  have  urged  their  objections  with  ex- 
ceptional zeal  and  ability ;  but  we  are  mindful  that  our  Legis- 
latu:e  has  repeatedl}'  reminded  us  that,  in  the  administration 
of  tiie  criminal  law,  justice  is  not  to  be  defeated  through  tech- 
nicalities. 

Section  8236,  Rev.  St.,  is  as  follows: 

"Xeither  a  departure  from  the  form  or  mode  prescribed  by 
this  Code  in  respect  to  any  pleading  or  proceeding  nor  any  error 
or  mistake  therein  renders  it  invalid  luiless  it  has  actuallv 

t. 

prejudiced  the  defendant  or  tended  to  his  prejudice  in  respect  to 
a  substantial  right." 

And  again,  sections  7085  and  7086  are  as  follows; 

"Sec.  7685.  Words  used  in  a  statute  to  define  offense  need 
not  be  strictly  pursued  in  the  indictment,  but  other  AVords  con- 
veying the  same  nieaning  may  be  used. 

"Sec.  7686.  The  indictment  is  sufficient  if  it  can  be  under- 
stood therefrom:  (1)  That  it  is  entitled  in  a  court  havinii' 
authority  to  receive  it  though  the  name  of  the  court  be  not 
stated ;  (2)  That  it  was  found  by  the  grand  jury  of  the  county 
in  which  the  court  was  held;   (3)  That  the  defendant  is  named. 


STATE  V.  SHUPF. 


417 


or  if  his  name  cannot  bo  discovered,  that  he  is  described  by  a 
fictitious  name,  with  a  statement  that  his  true  name  to  the  jury 
is  unknown;  (4)  That  the  offense  was  committed  at  some  place 
within  the  jurisdiction  of  the  court,  except  when  the  act  though 
done  without  the  local  jurisdiction  of  the  county  is  triable 
therein  ;  (5)  That  the  offense  was  committed  at  some  time  prior 
to  the  time  of  finding  the  indictment;  (0)  That  tlie  act  or 
omission  charged  in  the  ofl'ense  is  clearly  and  distinctly  set  forth 
in  ordinary  and  concise  language,  without  repetition,  and  in 
such  a  manner  as  to  enable  a  person  of  common  understanding 
to  know  what  is  intended  ;  (7)  That  the  act  or  omission  charged 
as  the  offense  is  stated  with  such  a  degree  of  certiiinty  as  to 
enable  the  court  to  pronounce  judgment  upon  a  conviction  ac- 
cording to  the  right  of  the  case." 

Again,  in  Pcojilc  v.  Ah  Choy,  1  Idaho,  317,  the  Territorial 
Supreme  (\)urt  said :  **The  definition  given  of  murder  in  the 
statute  is  'the  unlawful  killing  of  a  hmnan  being  with  malice 
aforethought,  either  expressed  or  implied.'  This  deiiuition  in- 
cludes both  degrees  of  murder,  and  it  is  sufficient  if  the  indict- 
ment charges  the  offense  in  the  language  of  the  statute  defining 
it." 

Even  in  the  absence  of  the  two  opinions  of  this  court  above 
refernd  to,  it  does  not  cx-cur  to  us  that  there  could  be  any  serious 
question  of  the  sulHcieney  of  the  indictment  under  considera- 
tion, based  upon  the  provisions  of  our  statute. 

The  defendant  was  informed  by  the  indictment  of  the  time — 
before  returning  the  indictment — of  the  alleged  homicide,  that 
it  was  committed  in  Shoshone  County,  State  of  Idaho,  that  the 
weapon  us(  d  was  a  rifle  loaded  with  gunpowder  and  leaden 
bullet,  the  name  of  the  deceased  and  that  he  inmiediately  died, 
that  the  act  of  killing  on  his  part  was  done  unlawfully,  felon- 
iously, willfully,  deliberately,  premeditatedly  and  of  his  malice 
aforethought. 

It  is  true  the  indictment  den's  not  charge  in  so  many  Avords 
that  the  killing  was  intentionally  or  pur^tosely  done,  as  urged 
by  counsel,  but  we  do  not  think  either  essential  under  the  provi- 
sions of  our  statute. 

The  second  assignment  is  based  upon  the  refusal  of  the  court 
tc  per  .nit  a  witness  for  the  prosecution  on  cross-examination  to 
answer  the  following  question:  "State  whether,  at  any  time 
within  three  or  four  weeks  prior  to  this  occurrence,  you  and  the 


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iii 


448 


AMERICAN  CRIMINAL  REPORTS. 


defendant  were  negotiating  by  which  you  were  to  ti'ade  a  re- 
volver for  this  rifle." 

The  witness  had  previously  testified  that  between  two  and 
four  weeks  prior  to  the  homicide  he  had  a  conversation  with 
the  defendant,  and  that  defendant  told  him  ho  had  a  rifle,  jind 
wanted  to  trade  it  for  a  revolver  he  had. 

Connsel  for  defendant,  in  attempting  to  explain  wherein  the 
question  and  answer  were  material,  made  the  following  state- 
ment to  the  court:  "Suppose  that  there  was  a  trade  on  between 
these  two  men  to  trade  this  rifle  for  a  pistol,  and  the  defendant 
on  that  morning  (the  morning  of  the  homicide)  had  bvouglit 
the  rifle  up  for  the  pur]iose  of  making  a  trade; — that  is  my 
object  in  asking  the  question." 

We  think  the  learned  judge  was  in  error  in  not  permitting 
the  witness  to  answer  this  question.  Whilst  it  may  have  been 
remote  and  apparently  inmiaterial,  yet  it  might  have  aided  the 
jury,  to  some  extent,  at  least,  in  ascertaining  his  purpose  in  hav- 
ing the  rifle  on  that  occasion.  In  cases  of  the  magnitude  and 
importance  of  the  one  under  consideration,  the  jury  should  have 
the  benefit  of  everything  that  will  shed  the  least  ray  of  light 
on  the  transaction.  We  do  not  wish  to  be  understood  as  attach- 
ing si"»ecial  importance  to  this  evidence  had  it  been  permitted 
to  go  to  the  jury;  Ave  only  say  that  counsel  brought  himself 
sufiicientlv  within  the  rules  of  evidence  to  allow  it  to  go  to  the 
jury  and  let  them  deal  with  it  in  connection  with  all  other  facts 
and  ciremnstances  connected  with  tl;e  case. 

The  third  assignment  is  as  follows:  "The  court  erred  in 
remarking  in  the  presence  of  the  jury,  while  liruce  ShulT,  a 
witness  for  appellant,  was  giving  his  testimony,  as  follows: 
Court:  'Well  I  don't  know  what  to  think  of  it.  I  never  in  }ny 
life  heard  of  this  line  of  testimony.  Xow,  because  a  man  should 
fall  down,  that  is  absolutely  not  the  act  of  an  insane  man  that 
I  ever  hoard  of.'  " 

The  court  evidentlv  did  not  mean  to  comment  on  the  evi- 
dence  of  the  witness,  and  the  statement  was  certainlv  made  in 
an  unguarded  moment.  Jurors,  as  a  rule,  listen  with  a  great 
deal  of  respect  and  attention  to  what  the  court  says,  and  for 
that  reas(»n  the  trial  judge  should  always  be  extremely  careful 
in  any  remarks  from  the  bench  that  can  be  construed  into  a 
comment  or  an  opinion  of  the  evidence  of  witnesses.  Wc  be- 
lieve this  rule  is  universal. 


STATE  V.  SHUFF. 


449 


The  fourth  assignment  follows:  "The  court  erred  in  refus- 
ing to  permit  the  appellant  to  ask  the  witness  John  Dodson  the 
following  question:  'I  will  ask  you,  taking  into  consideration 
vour  acquaintance  with  him  and  all  of  the  opportunities  you 
have  had,  what  is  your  opinion  as  to  wbf^ther  he  was  a  sane  or 
insane  man  on  the  9th  day  of  November,  1901  V  "  It  is  shown 
hy  the  record,  that,  prior  to  asking  this  question,  counsel  for 
appellant  had  shown  by  the  witness  Dodson  an  acquaintance  of 
six  years  with  ai)pellant.  A  portion  of  the  time  appellant  had 
worked  for  witness  and  the  first  three  years  was  with  him  more 
or  less  every  week,  and  the  last  three  years  saw  him  four  or 
five  times  a  year,  and  prior  to  Xovember  11,  1901,  "I  saw  him 
passing  backward  and  forward  every  day  up  to  that  date,  pass- 
ing by  my  house  going  to  work." 

We  are  of  the  opinion  that  the  witness  should  have  been  per- 
mitted to  answ-er  this  question.  It  had  lx;cn  shown  that  an 
ac(iuaintance  covering  a  period  of  six  years  just  previous  to  the 
homicide  had  existed  between  witness  and  appellant.  They  had 
worked  tngcther  a  portion  of  the  time,  and  for  a  period— we  are 
not  int'ormed  how  long — witness  had  seen  appellant  going  to 
and  frcni  his  At'ork  almost  daily.  Enough  had  been  showni  to 
give- the  appellant  the  benefit  of  the  evidence.  Staiv  v.  Iliirst, 
•i  Idaho,  3i5,  39  Pac.  55-4;  ^Slatc  v.  Larkins,  5  Idaho,  200,  47 
Pac.  Ul."). 

The  llfth  assignment  of  error  is  as  follows:  "The  court  erred 
in  permitting  the  witnesses  E.  E.  llopkin,  J.  S.  Finlay,  and  Iv. 
yi.  Bninn,  W.  J.  Brann,  Stewart  Fuller,  and  Fi'ceman  S. 
Kowe,  called  in  rebuttal  on  the  part  of  the  State,  to  give  sworn 
oi)inions  as  to  the  sanity  of  the  appellant."  Counsel  for  appel- 
lant urges  that  not  one  of  these  witnesses  qualified  himself  to 
give  an  opinion  upon  the  subject  by  showing  such  an  acquaint- 
ance with  the  appellant  and  the  necessary  opportunities  for 
so  far  observing  him  as  to  enable  him  to  form  an  opinion  that 
would  or  could  be  of  any  value. 

The  witness  Hopkins  testified:  "Live  in  Black  Bear,  Idaho, 
and  am  a  shift  boss  in  the  Standard  mine.  I  know  the  defend- 
ant ;  I  have  known  him  personally  since  June,  1899.  I  traveled 
with  him  on  thy  train  from  Missouri  here,  and  have  been  with 
him  mniv  or  less  during  his  residence  here.  He  never  worked 
on  the  level  I  was  shift  boss  on;   he  worked  in  the  shaft  some, 

Vol.  XIII— 20 


K'' ; 


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450 


AMERICAN  CRIMINAL  REPORTS. 


but  whether  he  was  ever  on  shift  when  I  was  I  don't  remem- 
ber.   I  have  been  with  him  quite  a  good  deal." 

J.  S.  Finlay  testified  he  was  shift  boss  at  the  Standard  mine ; 
"knew  the  defendant ;  lie  worked  on  my  shift  in  the  mine  about 
two  or  three  months  dirocth'  before  the  11th  of  November  hist. 
I  saw  him  several  times  every  day;  I  directed  the  work  he 
was  doing." 

R.  ^I.  Brann  testified  be  had  known  the  defendant  from  Sep- 
tember before  the  homicide,  and  up  to  the  11th  day  of  Novem- 
ber, the  day  of  the  homicide.  Witness  was  a  tindx>rman  in 
the  Standard  mifie,  and  the  appellant  helped  him  abcmt  two 
weeks. 

W.  J.  Brann  testified  that  he  is  foreman  of  the  Standard 
mine.  Has  known  the  appellant  two  years,  and  possibly  more; 
had  visited  appellant  at  his  work  in  the  mine.  "He  worked 
under  me  a  month  prior  to  the  1st  of  November,  11)01;  be 
worked  in  the  shaft  some  time  before  that  in  tlie  fore  part  of 
the  season." 

Stewart  Fuller  testified  ho  had  known  appellant  2lj  years, 
during  which  time  ap])ellant  worked  for  him  about  two  moiulis 
in  his  house.  * 

Freenum  S.  Rowe  testified  he  came  from  ^Fissouri  with  ap» 
pellant,  and  had  known  him  about  three  years;  had  met  him 
several  times  since,  and  knew  him  up  to  November  11,  11)01. 
■  It  is  true,  as  urged  by  counsel  for  appellant,  that  none  it' 
the  witnesses  had  had  a  very  long  or  intimate  acquaintance  with 
appellant,  as  was  the  case  in  ISlatc  v.  Uurst,  sujira.  It  mu>r 
be  borne  in  mind,  however,  that  the  plea  of  insanity  is  always 
brought  into  the  case  by  defendant,  and  the  prosecution  is  phicid 
at  a  disadvantage  to  procure  evidence  to  rebut  the  i)lea.  Tlie 
law  wisi'ly  provides  that  nonexpert  witnesses  nuiy  give  their 
opinions  as  to  the  sanity  or  insanity  of  the  accused.  They  are 
required  to  state  the  facts  upon  which  they  base  tlieir  opinions, 
and  from  these  facts,  perhaps,  more  than  the  opinion  of  the 
witncssT's,  the  jurors  form  their  conclusions.  We  find  no  error 
in  this  ruling  of  the  court. 

The  sixth  assiginnent  is  that  the  court  erred  in  giving  the 
jury  instruction  5,  requested  by  the  State.  A|)pelhuit  only 
objects  to  and  assigns  as  error  the  second  paragraph  of  the 
instruction.  The  entire  instruction  is  as  follows:  "In  this  cnse 
it  is  not  claimed  by  the  prosecution  that  the  homicide  charge 


STATE  V.  SHUPP. 


451 


was  committed  in  the  perpetration  or  attempt  to  perpetrate  any 
other  felony,  but  it  is  claimed  that  it  is  mnrder  in  the  first 
degree,  as  being  unlawful,  malicious,  willful,  deliberate,  and 
premeditated.  In  this  class  of  cases  the  Legislature  leaves  the 
jury  to  determine  from  all  the  evidence  before  them  the  degree 
(if  the  crime,  but  })rescribes  for  the  government  of  their  delibera- 
ticiiis  the  same  test,  which  is,  is  the  killing  willful,  deliberate 
iiiul  premeditated  f '  The  unlawful  killing  must  be  accompanied 
with  a  delilx'rate  and  clear  intent  to  take  life,  in  order  to  con- 
!^titute  murder  of  the  first  <|egree.  The  intent  to  kill  must  be 
the  result  of  delil)eratc  premeditation.  It  nmst  be  formed 
upiin  the  pre-existingj  reflection,  and  not  upon  a  sudden  heat  of 
])assioii  suiHcient  to  preclude  the  idea  of  deliberation.  Tlv  part 
objected  to  follows:  *'Thei'e  need  bo  no  appreciable  sjiaco  of 
tiiiu>  between  the  intention  to  kill  and  the  act  of  killing — they 
11111  v  lie  as  instantaneous  as  successive  thoughts  of  the  mind.  It 
is  (inly  necessary  that  the  act  of  killing  be  precedetl  by  a  con- 
tiureiice  of  will,  deliljeration  and  premeditation  on  the  part  of 
tlie  shiver;  and  if  such  is  the  case  the  killing  is  murder  of  the 
first  degree,  no  matter  how  rapidly  these  acts  of  the  mind  may 
sueci'ed  each  other,  or  how  quickly  they  may  be  followed  by  the 
act  of  killing."  In  support  of  this  contention,  counsel  for 
ajipelhint  cites  State  t\  Shafcr,  55  Pac.  526,  a  Montana  case. 
A  ciir<'i'ul  reading  of  this  case  will  disclose  that  it  does  not  sup- 
port the  contention  of  appellant.  It  is  true  that  the  paragraph 
of  the  instruction  under  consideration  and  the  one  considered 
by  the  Montana  court  are  in  precisely  the  same  language.  It 
will  he  olwerved,  however,  that  Chief  Justice  Pemberton,  sjieak- 
ing  for  the  court,  says :  "It  will  be  seen  that  this  instruction 
omits  malice  afcn'ethought  from  the  definition  of  murder  in  the 
first  degre<'.  It  is  not  contended  that  malice  aforethought  is 
not  an  essential  element  of  the  crime  of  murder  in  the  first 
ddiree,  but  counsel  for  the  State  sav  the  instruction  must  be 
considered  an<l  construed  together  as  a  whole,  and  as  in  other 
instructions  the  court  pi'operly  defines  murder  in  the  first 
degree.  Tlie  defect  in  the  instruction  under  consideration  is 
tl:ereby  cured.  This  would  be  correct  if  the  instructions  taken 
as  a  whole  were  harmonious  and  free  from  contradictions.  In 
this  instruction  the  court  not  only  omits  the  words  'malice  afore- 
thought' entirely,  but  says!'  'It  is  only  necessary  that  the  act 
of  killing  be  preceded  by  a  concurrence  of  will,  deliberation 


ii. 


t ; 


452 


AMERICAN  CRIMINAL  REPORTS. 


and  premeditation  on  the  part  of  the  slayer,  and  if  such  is  the 
case  the  killing  is  murder  in  the  tirst  degree.'  We  think  this 
is  a  defective  and  erroneous  definition  of  murder  in  the  liist 
degree,  and  not  in  harmony  with  other  instructions  given  hv 
the  court  defining  the  crime.  It  is  unnecessary  to  say  wlictlicr 
this  error,  standing  alone,  woxdd  be  considered  sufficient  tn 
authorize  a  reversal  of  the  case.  Kevertheless  we  cannot  l)nt; 
disapprove  of  the  instruction;  it  is  a  dangerous  instruction,  .'iiul 
so  well  calculated  to  produce  damage  ami  prcjmlice,  even  wIkh 
considered  with  all  the  other  instructions,  that  it  is  difficult  to 
say  that  it  is  not  fatally  defective. 

"The  instructions  in  the  case  before  us  are  full  and  com- 
plete, and  in  no  wise  contradictory,  unless  it  can  be  said  I  lint 
the  omission  of  the  word  'nuilice'  i  i  the  latter  clause  of  the 
one  under  consideration  (the  word  'nuilicious'  being  uscmI  in 
the  first  paragraph)  is  an  omission  that  might  in  some  \v;iy 
prejudice  the  rights  of  the  appellant.  We  are  not  prepared  to 
say  this,  but  are  of  the  opinion  that  all  instructions  attempting' 
to  define  murder  of  the  first  degree  should  clearly  and  dis- 
tinctly set  out  all  the  elements  required  to  constitute  that  crime. 

The  seventh  assignment  is  as  follows:  *'The  court  erred  in 
giving  the  jury  instruction  6  requested  by  the  State."  Tiuit 
instruction  reads  as  follows,  to-wit:  "From  these  definitions 
the  jury  will  see  that  any  unlawful  killing  of  a  human  beini;, 
with  malice  aforethought,  is  murder;  but  if  nothing  further 
characterizes  the  offense  it  is  murder  of  the  second  degree. 
To  constitute  the  higher  offense,  there  must  be  sujieraddecl,  td 
the  general  definition  alxtve  given,  willful?  "••',  -i'-iUKTation  and 
])re!v."ditation.  By  willfulness  is  mean;'  Ll  •  '  •-as  of  purjxise, 
with  the  intent,  that,  by  the  given  ac;;,  . !:-.  hi'e  of  the  party 
should  be  tak(>n.  It  must  1)0  deliberat*>  a,i  _  remeditated.  J^y 
this  it  is  not  meant  that  the  killing  nuist  have  been  conceived  or 
intemled  for  any  particular  length  of  time.  It  is  sufficient  it' 
it  was  done  with  reflection  and  conceived  iK'forehand.  Ami  in 
this  view,  as  I  have  said  before,  the  deliberate  pur[)Ose  to  kill 
and  the  killing  nuiy  follow  each  other  as  ra])idly  as -successive 
im|>ulses  or  thoughts  of  the  mind.  It  is  enough  that  the  party 
deliberate  before  the  act — premeditate — the  purpose  to  sl;iy 
before  he  gave  the  fatal  blow.  But  while  the  purpose,  the  intent 
and  its  execution  may  follow  thus  rapidly  upon  each  other,  it 
is  proper  for  the  jury  to  take  into  consideration  the  shortness 


STATE  V.  SHUFF. 


453 


11,:)  i: 


of  such  interval  in  considering  whether  such  sudden  and  speedy 
oxcciitiou  may  nut  be  attributed  to  sudden  passion  and  anger. 
r;itlier  than  to  deliberation  and  premeditation,  AvhicU  must  eiiift'- 
actcrize  the  higher  offense.  From  what  I  have  said  you  will 
src  that  the  distinction  between  the  two  grades  of  offense  is, 
I  hilt  in  murder  of  the  first  degree  (unless  it  is  committed  in  the 
perpetration  or  attem])t  to  perpetrate  arson,  rajie,  robbery,  bur- 
•  liiry  or  mayhem),  the  killing  must  be  delilxjrate  and  premedi- 
tiitcd,  wiiilst  in  murder  of  tiie  second  degree,  the  killing  is  not 
deliberate  or  premeditated.  In  the  one  case  there  is  deliberate, 
premeditated,  preconceived  design,  though  it  may  have  been 
formed  in  the  mind  immediately  before  the  mortal  blow  was 
"■iveii,  to  take  life.  In  the  other  case  there  is  no  delilx.n'ation, 
|ireiii('ditation,  or  preconceived  design  to  kill.  In  both,  however, 
tlie  killing  must  have  been  unlawful  and  accompanied  witli 
malice." 

To  this  instruction  appellant  objects  and  alleges  as  error  this 
paragraph:  "The  deliberate  purpose  to  kill  and  the  killing  may 
f(dlow  each  other  as  rapidly  as  successive  impulses  of  the  mind." 
We  are  of  the  opinion  that  this  instruction,  taken  as  a  whole, 
clearly  and  correctly  states  the  law. 

I'he  eighth  assigmnent  is  based  upon  the  seventh  instruction 
given  by  the  State,  towit:  "To  establish  a  defense  on  the 
ground  of  insanity  it  nuist  be  clearly  proved  by  the  defendant 
by  a  iire|)onderance  of  evidence  given  upon  the  trial." 

In  support  of  his  contention,  counsel  for  appellant  cites  Daris 
r.  11.  S.,  KK)  U.  S.  4(5J),  10  Sup.  Ct.  JJ.-),'},  40  L.  Ed.  4!)!).  This 
is  a  very  able  and  exhaustive  opinion  by  Mr.  Justice  Ilarlau. 
We  have  read  it  Avith  much  interest  and  care.  It  reviews  some 
of  the  English  cases,  as  well  as  nuniy  of  our  own  country.  Jus- 
tice Harlan  cites  with  approval  the  instruction  given  by  Justice 
Cox  of  the  Supreme  Court  of  the  District  of  Colundiia  in  the 
(litiicau  Case  (1).  C.)  10  Fed.  1(51-103,  as  follows:  "The 
crime  there  involves  three  elements,  viz.:  The  killing,  malice, 
and  a  responsible  mind  in  the  murderer.  But  after  all  the 
evidence  is  in,  if  the  jury,  while  bearing  in  mind  both  these 
l)resnmptions  that  I  have  mentioned,  i.  e.,  that  the  defendant 
is  innocent  until  he  is  proved  gnilty,  and  that  he  is  and  was 
sane,  unless  evidence  to  the  contrary  ai)pears,  and  considering 
the  whole  evidence  in  the  case,  still  entertain  what  is  called  a 
reasonable  doubt  on  any  gi'ouud  (either  as  to  the  killing  or  the 


•i  J 


i  > 


s  1 


m. 


m  si 


If  i«rii,jili.t8a 


454 


AMERICAN  CRIMINAL  REPOUTS. 


responsible  condition  of  mind)  whotlier  he  is  guilty  of  the  criiiic 
of  nnu'der  as  it  hns  boon  explained  and  defined,  then  the  rnle  is 
tftat  the  defendant  is  entitled  to  the  benefit  of  that  doubt  and  in 
an  acquittal." 

Continuing,  Justice  Harlan  says:  "It  seems  to  us  that  undno 
stress  is  placed  in  some  of  the  cases  upon  the  fact  that  in  iimsc- 
cutions  for  murder  the  defense  of  insanity  is  fre<piently  resortcil 
to,  and  is  sustained  by  the  evidence  of  ingenions  experts,  whtisc 
theories  are  diliicult  to  he  met  and  overcome.  Then  it  is  said 
crimes  of  the  most  atrocions  character  often  go  inpnnished,  aiul 
the  public  safety  is  thereby  endangered,  but  the  possibility  of 
sucli  results  must  always  attend  any  system  devised  to  ascer- 
tain' and  ])unish  crime,  and  ou-jlit  not  to  induce  the  courts  to 
dcjiart  from  princijiles  fundamental  in  criminal  law,  and  the 
recognition  and  enforcement  of  which  are  demanded  by  every 
consideration  of  humanity  and  jiisticc.  Xo  man  should  be 
de])rived  of  his  life  under  the  forms  of  law  unless  the  junns 
who  try  him  are  able  upon  their  consciences  to  say  that  the 
evidence  before  them,  by  whomsoever  adduced,  is  sufficient  to 
show  beyond  a  reasonable  doubt  the  existence  of  every  fact 
necessary  to  constitute  the  crime  charged."  (,'ounscl  also  eites 
Coffin  i\  U.  S.,  ir)(5  r.  S.  482,  1.-)  Sup.  Vt  394,  3U  L.  Ed.  4S1 ; 
Com.  V.  Pomcroy,  117  ^lass.  143. 

^Ir.  ]>ouvier,  vol.  1,  page  2(»'.>,  under  the  head  of  "Ijurdeii 
of  Proof,"  dealing  with  the  question  of  insanity  in  criminal 
cases,  says:  ^'In  criminal  cases,  on  the  twofold  ground  that  a 
prosecutor  must  prove  every  fact  nece-^sary  to  substantiate  his 
charge  against  tL-e  prisoner,  and  that  the  law  will  presume  inno- 
cence in  the  absence  of  convincing  evidence  to  the  contrary, 
the  burden  of  ju'oof,  unless  shifted  by  legislative  intert'(  renee, 
will  fall  in  criminal  proceedings  on  the  prosecuting  party, 
though,  in  order  to  convict,  he  must  necessarily  have  recourse  to 
negative  evidence.  1  Tayl.  Kv.  ^  344;  United  States  v.  Gooding, 
1-2  Wheat.  460,  6  L.  Ed.  093. 

"The  burden  of  proof  is  throughout  on  the  Government  t*) 
make  out  the  whole  case,  and  when  the  prima  fncie  case  is  es- 
tablisl'.ed  the  burden  of  proof  is  not  thereby  shifted  ui)on  the 
defendant,  and  he  is  not  bound  to  restore  himself  to  that  pre- 
sumj)tion  of  innocence  in  which  he  was  at  the  conmiencement 
of  the  trial" — citing  a  large  nund)er  of  cases. 

Again,  on  page  809,  the  author  says:    "The  effect  of  the 


STATE  t'.  SHUFF. 


455 


pica  of  insanity  has  anmotimcs  been  controlled  by  the  in^^trno- 
tiuns  of  the  court  in  regard  to  the  burden  of  proof  and  the 
requisite  amount.  In  most  of  the  Auicric  in  ^■tatcs  the  better 
established  doctrine  now  ia,  that,  whenever  lU  the  course  of 
a  trial  evidence  is  produced  showinj];  that  the  defendant  was  ol" 
unsound  mind,  the  burden  of  proof  iuunediately  rests  u]ton  the 
prosecution  to  show  the  contrary;  the  onus  is  first  on  the  jjris- 
(I'.ur  to  show  that  the  insanity  exists;  which  being  don(>,  it 
iunaediately  shifts  upon  the  prosecution,  and  it  is  for  it  to  show 
that  insanity  does  not  exist,  or,  if  it  does,  that  it  is  not  such  as 
would  prevent  him  from  knowing  aiul  doing  right." 

^Ir.  rndcrhill,  in  liis  late  and  very  excellent  work  on  Crim- 
inal Evidence,  in  discussing  the  question  before  us,  at  section 
157  says:  ''The  cases  are  inharmonious  upon  the  question  on 
whom  does  the  burden  of  proof  rest  when  insanity  is  in  issue 
in  a  crinunal  trial.  The  prisoner's  sanity  is  an  essential  and 
requisite  ingredient  in  any  crime  with  which  he  may  be  charged, 
for,  if  his  mental  soundness  is  not  shown,  there  certaiidy  can- 
not bo  a  criminal  intent  present  to  render  the  act  Avitli  which  he 
is  connected  a  crime.  It  is  tlie  general  rule  that  the  Slate 
has  the  burden  of  proving  ail  the  necessary  ingredients  of  a 
crime,  including  the  criminal  intention,  and  this  rule  logically 
ca-!ts  the  l)urd(  ii  of  proving  the  sanity  of  an  acctised  person 
ui)on  the  prosecution  in  tlm  first  instance.  Wc  uuisi  dis- 
tinguish clearly  between  the  burden  of  jiroof — that  is,  the 
obligation  iuiposed  up<m  a  party  who  alleges  a  fact  to  establish 
it  by  ])roof — and  the  mode  and  order  of  proof." 

In  sup])ort  of  this  text  the  author  cites  the  following  cases: 
State  V.  (Icnz,  57  N.  J.  Law,  4r)!>,  .'Jl  Atl.  1037 ;  People  v.  Nino, 
141)  X.  Y.  317,  43  X.  E.  853 ;  State  v.  LarVins  (1897),  .^)  Idaho, 
200,  47  Pac.  045;  State  v.  Scott  (1S97),  41  La.  Ann 
253,  21  South.  271,  3(5  L.  R.  A.  721  ;  Kiue]  v.  State  (18!)7),  74 
Miss.  570,  21  South.  235;  Slate  v.  liedemcier,  71  Mo.  173, 
17(i,  30  Am.  Rep.  402;  (Irnres  v.  State,  45  N.  J.  Law,  347, 
300,  40  Am.  Rep.  77S;  Fisher  v.  State,  30  Tex.  App.  502,  18 
S.  \V.  i)0;  Ford  v.  State,  71  Ala.  385;  State  v.  Fclter,  32  Iowa, 
4U,  54;  People  r.  McCann,  10  X.  Y.  58,  09  Am.  Dec.  042; 
PeapJc  V.  McKlvaine,  125  X.  Y.  596,  20  X.  E.  929;  State  v. 
Coleman,  20  S.  0.  441,  454;  Polk  v.  State,  19  Ind.  170,  81 
Am.  Dec.  382;  Loeffner  v.  State,  10  Ohio  St.  598,  010;  Green, 
V.  State,  88  Tcnn.  014,  14  S.  W.  430;  Smith  v.  State,  19  Tex. 
App.  95,  111;  Graham  v.  Com.  (Ky.),  16  B.  Men.  587;  People 


nii 


m 


II 


ill 


till 


\1? 


1 


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m. 


1 


I'll 


i\ 


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:i 


:i: 


I 


456 


AMERICAN  CRIMINAL  REPORTS. 


! 


V.  Myers,  20  Cal.  518 ;  People  v.  Bawden,  00  Cal.  195,  I'JO,  i>7 
Pnc.  204;  Com.  v.  Gerade,  145  Pa.  289,  2915,  22  Atl.  4(14,  liT 
Am.  St.  Pep.  089;  Com.  v.  Rotjcrs  (Mat's.),  7  ^letc.  500,  -li 
Ain.  Dec.  458;  Uoce  v.  tStaic,  o  lleisk.  34S,  373;  llojtps  i. 
People,  31  111.  385,  83  Am  Dec.  231;  Laiujdon  v.  People,  i;53 
111.  382,  403,  24  X.  E.  874.    Set-,  also,  7  Crim.  J.aw  .Mag.  431. 

In  view  of  the  luniu'roua  authorities  cited  and  the  cnret'iil 
investigation  we  have  given  this  (piestion,  we  arc  not  preimrcd 
to  say  that,  if  no  other  error  e.\i!«tcd  in  this  case,  we  would 
feel  justitied  in  awarding  a  niw  trial.  The  defendant  on  his 
own  motion  brings  the  question  of  insanity  into  the  case,  aiul 
it  devolves  upon  him  to  create  a  reasonable  doubt  in  the  mimls 
of  the  jurors  as  to  his  resp(msibility  at  the  time  of  the  homicide. 
If  he  fails  to  do  this,  the  £)r!)Hiruti()n  Uiay  rest  on  the  legid 
assumption  that  all  men  are  sane  and  responsible  for  their  aets. 
If,  on  the  other  hand,  he  does  succeed  in  creating  a  rciisoiudilo 
doubt  in  the  mimls  of  the  jurors  as  to  his  sanity  at  the  time  dl' 
the  commission  of  the  homicide,  h(>  is  entitli'd  to  the  bciictit  nl' 
such  doubt  at  the  haiuls  of  the  jurors,  and  the  responsibility 
of  overcoming  such  doubt  shifts  to  the  prosecution. 

The  ninth  error  assigned  attacks  instruction  8  given  by  the 
court.  It  is  as  follows:  "In  entering  upon  an  invest igal ion  of 
this  (dl'ense,  however,  the  jury  sho\dd  remend)er  that  the  iletVnd- 
ant  has  adnutted  the  killing;  but  sets  up  insanity.  Tlxret'orc 
the  burden  of  proving  this  defense  to  the  satisfaction  of  the  jiu'v 
is  upon  the  defendant,  l)ecause  the  law  presumes  that  every  man 
is  sane  and  possesses  a  sutKcient  degrcv  of  reasim  to  be  responsi- 
ble for  his  crime,  until  the  contrary  is  proved  to  the  satisfac- 
tion of  the  jury;  and  that,  to  establish  a  delVmse  upon  the 
ground  of  insanity,  it  must  be  clearly  proved  that  at  the  time 
of  the  commission  of  the  act  the  i)artv  accuset'  was  lal)oriiig 
under  such  a  defect  of  reason,  from  disease  of  the  mind,  as  n<it 
to  know  the  nature  and  (puility  of  the  act  he  was  doing,  or,  if 
he  <iid  know  it,  that  he  did  not  know  he  was  doing  wrong  in 
resjiect  to  the  very  act  with  which  he  is  charged." 

Cnunsel  for  appellant  in  his  brief  says:  "The  same  argu- 
ment applies  to  this  instruction  as  that  made  imdcr  error  Xo.  S, 
to  which  reference  is  made."  The  views  expressed  by  us  in 
passing  upon  the  eighth  assignment  will  apply  to  this  assign- 
ment. 

The  tenth  assignment  attacks  the  ninth  instruction  given  by 
the  court.    The  instruction  reads:   "The  defense  of  insanity  is 


STATE  V.  SIIUFP. 


457 


n  defense  which  may  be  and  sometiraea  is  resorted  to  in  cases 
ill  wliich  the  proof  of  the  overt  act  is  so  full  and  complete  that 
any  otlier  means  of  avoiding  conviction  and  esc:!J>!n^•  punish- 
ment seems  hoptlf^ss.  While,  therefore,  thi.s  is  a  detV'nso  to  bo 
wcif^hed  fairly,  fuli;-,  and  justly,  and,  when  satiisfact'.rily  cstab- 
lishcnl,  must  reonimend  itself  to  the  sense  of  humanity  and 
justice  of  the  jiiry,  you  arc  to  examine  it  with  care,  lest  an 
iii-icuious  counterfeit  of  this  mental  infirmity  shall  furnish  im- 
munity to  guilt." 

In  all  other  matters  except  that  of  insanity  the  defendant 
is  entitled  io  every  reasonable  doubt.  It  is  a  well-settled  prin- 
ciple that  trial  eourt.s  should  l)e  guarded  from  any  expression  in 
the  presence  or  hearing  of  the  jury,  that  can  in  any  way  be 
construed  into  an  expression  of  thei>'  views  on  any  evidence  that 
may  be  before  the  jury.  Aszmmi  v.  State,  123  Ind.  347,  24 
:S.  K.  123,  8  L.  Ft.  A.  33;  Dawson  v.  Slate,  02  Miss.  241; 
Thom]>son  on  Trials,  vol.  2,  §  2433. 

An  inspection  of  the  alxn'e  authorities  will  disclose  that  it 
was  error  to  give  this  instruction.  The  last  paragraph  of  the 
instruction  was  nusleading,  also,  and  should  not  have  been  given. 

The  eleventh  assignment  is  based  upon  the  alleged  error  in 
fjiving  instruction  No.  13".  It  roadj:  "The  jury  are  instructed, 
as  a  proposition  of  law,  that  statements  nmde  by  counsel  for  the 
defendant,  in  their  presence  and  in  the  conduct  of  the  trial,  as 
to  the  commission  by  the  defendant  of  the  offense  alleged  in  the 
indictment,  are  statements,  in  so  far  as  they  are  admissions 
against  the  defendant,  to  be  considered  by  the  jury  in  regard 
to  the  (piestion  as  to  whether  or  not  the  defendant  is  responsi- 
ble, in  this  case,  for  the  commission  of  the  offense  alleged  against 
him  in  the  indictment." 

We  know  of  no  authority  to  support  this  instruction, 
nor  do  we  think  any  can  be  found.  It  is  a  fundamental 
rule,  as  we  understand  it,  that  the  rights  of  a  defendant 
cannot  be  prejudiced  by  any  statement  made  by  his 
counsel  or  any  admissions  he  may  attempt  to  make.  Indeed, 
the  law  is  so  careful  of  the  rights  of  a  party  charged  with  crime, 
that  eveii  admissions  nuide  by  himself  to  an  otHcer  cannot  be 
used  against  him,  unless  it  be  satisfactorily  shown  that  such 
statements  or  admissions  were  made  entirely  voluntarily,  and 
without  any  hope  of  reward  or  promises  of  immunity  from  the 
officer.  Nets  v.  State,  2  Tex.  280;  Williams  v.  State  (Tex.  Cr. 
App.)  44  S.  W.  1103;  Clayton  v.  State,  4  Tex.  App.  515. 


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AMERICAN  CRIMINAL  REPORTS. 


The  twelfth  error  nssig^ned  is:  "The  vcniict  wns  contrary'  to 
the  hiw  and  the  evidence." 

We  have  tlisposod  of  all  the  alleged  errors  of  law  occurring  on 
the  trial,  and,  as  the  case  must  go  back  to  the  lower  court  f(.r 
further  h(  aring,  we  are  not  called  upon  to  pass  upon  the  sulli- 
ciency  of  the  evidence  to  support  the  verdict. 

The  judgment  is  reversed,  and  the  cause  remanded  for  fur- 
ther proceedings  in  harmony  with  the  views  expressed  in  this 
opinion. 

SuLLivAX,  C  J.,  and  Ailsuik,  J.,  concur. 


I 


Mattiils  v.  Statk. 

80  Miss.  491—32  So.  Rep.  6. 

Decided  May  19,  1902. 

Homicide:    Practice — Confensions — Instrnctiona  as  to  reasonahle  donht, 

1.  The  Supreme  Court,  even  in  a  murder  case,  will  not  consider  nn 

assignment  cf  error  predicated  on  tlie  admission  of  evidence  If  no 
objection  was  made  in  the  court  below  to  its  Introduction. 

2.  Where  the  defendant,  on  the  nisht  of  the  commission  of  the  crime 

for  which  ho  is  Indicted,  went  to  the  homo  of  a  friend  for  assist- 
ance In  concealing  evidences  of  guilt,  awakened  his  friend  froni 
slumber,  saying,  "George,  I  am  in  trouble:"  to  which  the  friend 
replied,  "I  always  do  all  I  can  for  a  friend,"  and  thereupon  the 
defendant  recited  the  details  of  his  crime,  the  confession  so  made 
is  admissible  in  evidence. 

3.  The  giving  of  an  instruction  in  a  criminal  ca-se  Informing  the  Jury 

that  "the  defendant  Is  presumed  Innocent  until  he  is  proved  to 
be  guilty,  and  his  guilt  must  be  established  beyond  a  reasonable 
doubt  by  competent  evidence,"  does  not  constitute  reverdble  er- 
ror because  of  the  use  of  the  words,  "competent  evidence." 

4.  An  instruction  on  the   subject  of  a  reasonable  doubt  of  guilt  is 

not  erroneous  in  falling  to  direct  an  acquittal  for  such  doubt  ns 
might  arise  from  a  "'ant  of  evidence,  unless  there  be  some  fail- 
ure cf  proof  on  which  such  a  doubt  could  be  predicated. 

Appeal  from  Circuit  Court,  Lafayette  County;  lion.  Perrin 
II.  Lowry,  Judge. 

William  Matthis,  convicted  of  murder,  appeals.    Affirmed. 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


I! 


MATTHIS  V.  STATE. 


459 


William  Matthis,  the  appplUmt,  was  indicted,  tried,  and  cnn- 
victt'd  of  the  murder  of  John  A.  Montgomery;  was  Ht-ntciR-cd 
to  be  hung,  and  apiHJaled  from  aaid  judgment  and  sentence  to 
the  Supreme  (.'ourt.  The  indictment  uj)on  whieh  he  was  tried 
was  a  joint  one  against  apptdlant,  Orlandus  Lester,  AViiittiugfcju 
Owens,  and  William  Jackson.  A  severance  was  granted  and 
the  appellant,  W^illiam  Matthis,  separately  tried. 

The  fac^a  out  of  which  this  case  arose,  as  shown  by  the 
record,  were  substantially  these:  John  A.  ^lontgonury  and  his 
brother,  Hugh  Montgomery,  were  dejmty  United  Staters  mar- 
shals in  and  for  the  northern  district  of  Mississippi.  A  war- 
rant was  jilaced  in  their  hands  for  the  arrest  of  the  appellant, 
William  .Matthis,  who  was  charged  with  the  crime  <»f  illicit 
distilling,  commonly  called  "moonshining."  The  otHccrs  went 
to  the  country  residence  of  the  appellant,  reaching  tlu  re  late  in 
the  afternoon  of  the  l(!th  day  of  November,  11)01.  They  found 
the  appellant  engaged  in  some  domestic  business,  and  he  cliiimed 
that  it  wcmld  be  inconvenient  for  him  to  abandon  it  bef<ii'e  its 
completi<»n,  whieh  would  require  a  short  time  only.  Ho  per- 
suaded the  ofHcers  to  remain  over  night  with  him  at  his  home, 
agreeing  that  he  would  go  with  them  the  next  morning  to  Oxford 
and  execute  a  bond  for  his  appearance  to  answer  the  charge 
against  him  iV)r  which  they  soiight  his  arrest.  The  olHcers 
yielded  to  liis  persuasirm,  and  after  they  had  gone  to  lied  and 
were  asleep  the  appellant  William  Matthis,  William  Jackson, 
and  Orlandus  Lester  entered  their  room  and  killed  them  with 
guns  wlum  they  were  lying  in  bed.  After  killing  them,  the 
bmlies  of  the  officers  were  removed  to  a  point  near  the  center 
of  the  building,  and  appellant,  ^latthis,  set  fire  to  tl:e  house 
and  burned  it  down,  believing  that  thereby  he  could  oblitenit' 
evidences  of  the  crime.  Sometime  during  the  night  the  appellant 
went  to  the  housi'  of  his  friend,  George  Jackson,  who  lived  in 
the  same  country  neighborhood,  woke  up  Jackson,  and  said  to 
him :  **George,  I  am  in  trouble ;  can  you  do  anything  for  me  ?" 
to  which  Jackson  answered:  "I  always  do  all  I  can  for  a 
friend,"  and  thereupon  Matthis,  the  appellant,  recited  to  Jack- 
son the  horrible  details  of  the  double  murder.  Jackson  was  put 
upon  the  stand  as  a  witness  by  the  State,  and  the  district  attor- 
ney sought  to  prove  by  him  the  confession  which  ^Matthis  had 
nnulo  under  the  circumstances  above  stated.  Objection  was 
made  to  the  introduction  of  this  confession,  but  the  court  below 


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AMERICAN  CRIMINAL  REPORTS. 


overruled  the  objection,  and  Jackson  testified,  stating  fully  all 
the  matters  of  fact  which  appellant  had  detailed  to  him.  Two 
letters,  claimed  to  have  been  written  by  Alatthis,  after  ho  was 
arrested  for  the  murders  and  while  he  was  in  jail,  are  mentioned 
in  the  record,  but  one  of  them  only  seems  to  have  been  read  in 
evidence,  the  one  addressed  to  Shell  Vines,  which  details  plans 
for  defeating  justice  and  inviting  him  to  become  a  witness  in 
appellant's  behalf,  suggesting  what  the  v/itness  should  swear. 
The  other  is  a  letter  addressed  to  appellant's  wife,  about  wliich 
witnesses  were  interrogated,  but  it  was  never  offered  in  evidence. 
The  instructions  given  by  the  court  below  arc  sutHciently  stated 
in  the  opinion  of  the  court: 

James  G.  McGoiccn,  for  the  appellant. 

11'.  L.  Eastcrling,  Assistant  Attorney  General,  for  the  State. 

Cai.iioox,  J.  We  decline  the  request  to  pass  on  objections 
to  the  admission  of  evidenci-  not  made  below.  We  do  not  iind 
that  the  letter  complained  of  was  ever  read  to  the  jury.  If  it 
was,  the  result  would  be  the  same  in  this  case. 

The  confession  nuule  to  George  Jackson  was  clearly  compe- 
tent, lie  sought  Jackson  after  the  crime,  on  the  very  night  it 
■was  connnitted;  had  him  waked  up  to  tell  him  his  trouble,  in 
order  to  get  him  to  l)efriend  him  and  conceal  evidences  of  the 
murder;  asked  him  if  ho  could  do  anything  for  him,  aft(>r  say- 
ing: "(leorge,  I  am  in  tronbh^,"  to  which  George  answered: 
'•I  always  do  all  I  can  for  a  friend."  Thereupon  he  gave  the 
liorril)Ie  details  of  his  deed,  ^'o  case  in  the  lK)oks,  known  to  us, 
^varrants  tlie  exclusion  of  a  confession  nnide  under  such  facts. 

The  objectiojis  to  the  fourth  charge  given  for  the  State  are 
of  no  avail.  The  charge  reads  as  it'  asked  by  the  defendant, 
and  is  this:  "The  defendant  is  presumed  to  l)e  innocent  until 
he  is  proved  to  Ix'  guilty,  and  his  guilt  must  be  established 
beyond  a  reasonable  <lou'iit  by  comiK't<'nt  evidence;  and  if  the 
jury  have  a  reasonable  doidtt,  arising  from  the  evidence,  as  to 
the  defendant's  guilt,  they  shouui  accpiit."  The  ai)preliension 
that  the  words  "by  competent  eviihiiee"  could  possibly  have 
affected  the  jury,  to  defendant's  detriment,  in  a  case  like  this, 
is  overstrained.  Xor  is  the  objection  that  it  is  vicious  iK'causo 
it  does  not  have  the  words  "or  tiie  want  of  evi<lence''  after 
the  words  "reasonable  doubt,  arising  from  the  evidence,"  of  any 


MATTHIS  V.  STATE. 


4G1 


more  force  in  this  case,  -where  the  testimony  as  to  defendant's 
<niilt  is  sinipl.v  ovorwlielniing.  There  is  no  qnestion  here  that, 
if  tlie  jury  k'Heved  heyond  reasonable  donbt  tlie  competent 
testimony,  there  was  frronnd  for  donbt  from  any  lack  of  it,  ami 
it  is  only  in  cases  whore  there  is  such  groxind  that  reversals  AviU 
be  ordered  for  the  want  of  these  words.  Herman  r.  State,  75 
Miss.  ;540,  22  South.  S7.'3. 
xVflirnied. 

NoTic. — For  casts  and  notes  on  confessions  see:  11  Am.  Crim.  Rep. 
:C7-1G9,  192,  207,  250-295;   12  Am.  Crim.  Rep.  59-22S. 

For  remarkable  confessions  aoe:  12  Am.  Crim.  Rep.  80,  87,  88,  S9, 
PA?,,   214,   215,   21G,    221. 

Hex  V.  Jones,  11  Am.  Crim.  Rep.  278,  and  tlie  following  English  case 
should  be  read  together: 

REX  V.  WILLIAM  ROW. 

Russell  &  Ryan  153. 

1809. 

Persons  having  nothing  to  do  with  the  apprehension,  prosecution, 
or  examination  of  tlie  prisoner,  advised  him  to  tell  the  truth  and  con- 
sider his  family.  Held  that  such  admonition  was  no  ground  for  ex- 
cluding a  confession  made  an  hour  afterwards  to  the  constable  in 
prison. 

The  prisoner  was  tried  before  Mr.  Justice  Chambre,  at  the  Exeter 
Lent  assizes,  in  the  year  1809,  upon  an  indictment  for  stealing  a  quan- 
tity of  muslins,  and  other  goods  from  a  barge  in  Sutton  Pool,  Plym- 
0......  described  as  a  port  of  entry  and  discharge. 

In  consequence  of  a  misdescription  of  the  port  he  was  acquitted  of 
the  capital  part  of  the  charge,  but  convicted  of  the  larceny. 

The  pri.-ioner  was  aiiprehended  by  a  constable  at  his  own  lodgings, 
where  many  goods  of  the  description  of  those  that  were  stolen  were 
found;  and  while  the  constable  had  the  goods  and  the  prisoner  in  his 
custody  to  take  to  the  Guildhall  before  the  magistrates,  some  of  the 
ncighhors,  Kho  had  nothing  to  do  with  the  apprehension,  prosecution 
or  examination  of  the  prisoner,  ofllciously  interfered,  and  admonished 
the  prisoner  to  tell  the  truth,  and  consider  his  faintly,  which  was  a 
large  one.  No  answer  or  observation  thereon  was  made  by  the  con- 
stable, nor  did  the  prisoner  answer  them,  but  he  desired  the  constal)le 
to  call  upon  him  in  an  hour  at  the  prison,  which  he  did,  and  there 
the  prisoner  made  a  full  confession;  stating  in  what  manner  he  had 
been  persuaded  to  Join  In  committing  the  act,  and  all  the  circum- 
stances attending  it. 

The  learned  Judge  received  this  confession  in  evidence. 

In  Easter  term,  29th  April,  1809,  the  judges  present,  viz.  Lord  El- 
lenborough,  Mansfield  C.  J.  of  C.  B.,  Macdonald  C.  B.,  Heath  J.,  Grose 
J.,  Lawrence  j.,  Le  Blanc  J.,  Chambre  J.,  and  \Vood  B.,  agreed  that 
the  evidence  was   admissible  and  the  conviction  right,  because  the 


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AMERICAN  CRIMINAL  REPORTS. 


advice  to  confess  was  not  given  or  sanctioned  by  any  person  who  had 
any  concern  in  the  business. 

This  case,  and  the  two  former  (viz.  Rex  v.  Oriffln  and  Rex  v.  Jones) 
being  so  much  in  pari  materia,  Chambre  J.  stated  them  together,  and 
reserved  the  questions  on  the  admiss'bility  of  the  evidence  for  th(j 
opinion  of  the  Judges,  in  consequence,  as  he  stated,  of  the  obscurity 
and  discordance  of  the  cases  upon  the  subject  that  are  in  print,     (a) 

(a)  See  WarrickshalVs  Case,  1  Leach,  C.  C.  2G3.  See  the  cases 
collected,  Phillips  on  Evidence,  112,  4th  edit  Starke  on  Evidence, 
Part  IV,  p.  49. 


i'  I 


Stricklaxi)  v.  State. 

81  Miss.  134—32  So.  Rep.  921. 

Decided  November  10,  1902. 

Homicide:      Instructions  foreign   to  the   case — Instructions  assuminrf 
facts — Necessity    of   correct    instructions — Arrest — Manslaughter. 

1.  Four   persons,   two   of   them   armed,    came   to   the   home   of   the 

accused  late  at  night  and  ordered  him  to  surrender,  whereupon 
he  fired,  killing  one  of  them.  The  evidence  did  not  show  any 
cause  for  his  arrest  or  any  warrant  for  his  arrest.  Held,  that  the 
facts  did  not  show  an  offense  higher  in  grade  than  manslaughter; 
held,  also,  that  under  such  evidence,  the  following  instruction 
was  erroneous: 
"It  is  murder  to  kill  a  human  being  without  authority  of  law, 
when  done  in  the  commission  of  an  act  eminently  dangerous  to 
others  and  evincing  a  depraved  heart  regardless  of  human  life, 
although  without  any  premeditated  designs  to  effect  the  death  of 
any  particular  person." 

2.  It  was  error  for  the  Court,  in  its  instructions,  to  assume  that  the 

persons,  who  thus  Invaded  the  accused's  home,  were  oflScers. 

3.  It  is  a  matter  of  vital  importance  that  in  such  cases,  the  jury  shall 

be  informed  of  the  rights  of  the  accused  in  the  premises. 

Appeal  from  Circuit  Court,  :Marsliall  County;  Ihm.  P.  II. 
Lowrry,  Judge. 

Chark's  Strickland,  convicted  of  murder,  appeals.  Reversed. 

L.  A.  Smith,  f<jr  tlie  appellant. 

Monroe  McChmj,  Attorney  General,  for  appellee. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


STRICKLAND  v.  STATE. 


4G3 


Tekral,  J.  The  appellant,  being  convicted  of  murdev  and 
being  sentenced  to  be  hanged,  assigns  error  in  the  proceedings 
against  him. 

Four  persons  came  to  his  home  somewhat  late  at  night,  two 
of  them  armed,  declaring  they  came  to  arrest  him,  and  npon  see- 
ing liim,  demanded  that  he  throw  up  his  hands,  when  he  fired 
upon  them,  and  one  of  tliem  was  killed.  His  counsel  claim  that, 
if  he  fired  upon  his  assailants  because  of  being  unlawfully  re- 
straine<l  of  his  lil)erty,  he  is  only  guilty  of  manslaughter,  and 
that  at  least  his  contention  in  this  rcsijcct  should  have  been 
l)lacrd  before  the  jury.  This  contention  is,  we  think,  well 
«>rounde<l.  Whenever  the  life  of  a  human  being  is  in  the  bal- 
ance, it  is  but  just  to  him  that  the  law  governing  the  case  made 
against  him  be  pro]ierly  stated  to  the  jury. 

The  appellant  here  is  not  slu  'vn  to  have  committed  any 
wrcng;  his  assailants  show  no  warrant  against  him;  yet  he  is 
assaulted  in  his  own  home  at  night  by  unknown  pt'rs(jns,  some 
of  whom  are  visibly  armed,  and  one  of  them  is  killed  in  conse- 
quence. Without  more,  such  evidence  only  presents  a  case  cf 
manslaughter.  The  f(mrth  instruction  for  the  State  is  assailed 
as  erroneous.  It  declares,  "It  is  murder  to  kill  a  human  being 
without  authority  of  law,  when  done  in  the  commission  of  an 
act  eminently  dangerous  to  others  and  evincing  a  depraved 
lieart,  regardless  of  human  life,  although  without  any  premedi- 
tated design  to  eflfect  the  death  of  any  particular  person."  Law 
writers  justify  this  character  of  instruction  whore  a  jjorson  wan- 
tonlv  rides  a  horse  us(  d  to  kick  into  a  crowd,  and  oiu"  is  thereby 
killed;  or  to  random  shooting  into  a  crowd  without  a  particular 
purpose  to  kill;  the  malice  arising  out  of  the  wantonness  of  the 
dangevous  act  done  without  provocation;  but  it  is  not  strictly 
applicable  in  a  case  like  this,  where  the  accused  is  suddenly  ac- 
costed by  a  crowd  of  armed  men  demanding  him  to  surrender, 
under  circumstances  Avhere  the  propriety  of  their  conduct  is 
gravely  cpiestionable. 

The  fifth  instructir.n  for  the  State  assumed,  as  we  understand 
it,  that  the  persons  who,  armed,  acc«isted  Strickland  and  de- 
manded that  he  throw  u[)  his  hands  and  submit  to  arrest,  were 
officers  in  the  due  execution  of  their  office.  We  think  it  was 
for  the  jury  to  say,  ujion  the  evidence,  whether  they  were  offi- 
cers, and  whether  they  were  proceeding  with  discretion  and  pro- 
priety.   In  a  matter  of  such  grave  consequence  to  appellant  it 


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AMERICAN  CRIMINAL  REPORTS. 


was  of  vital  moment  to  him  that  the  jury  should  be  correctly 
informed  of  his  rights  in  the  premises. 

Becautio  of  the  error  of  instructions  (4  and  5  for  the  State), 
in  the  case  as  made  before  the  jury,  Ave  think  the  appellant 
should  have  a  new  trial.    Kevcrsed  and  remanded. 

Note  (by  J.  F.  G.). — If  the  evidence  was  no  stronger  than  it  apijears 
in  the  opinion;  and  if  tlie  case  was  one,  where  four  strangers,  two 
of  them  armed,  entered  the  home  of  the  accused  at  an  unseasonable 
hour  in  the  night  time,  without  any  apparent  authority  or  lawful 
cause,  and  ordered  him  to  surrender,  it  is  difTlcult  to  understand  why 
his  counsel  should  concede  the  case  to  be  one  of  manslaughter. 
(tSpradly  v.  State,  ante.  State  v.  Ooode,  ante.) 

Tlie  following  language  used  by  the  court  in  the  opinion:  "Without 
more,  such  evidence  only  presents  a  case  of  manslaughter,"  doubtless 
was  intended  to  mean,  that  it  presented  the  question  of  manslaughter, 
and  not  that  it  clearly  made  a  case  of  manslaughter. 


Powers  v.  Commoxwealtii. 

110  Ky.  386—22  Ky.  Law  Rep.  1807—53  L.  R.  A.  245—61  S.  W.  Rep. 

733. 

Decided  January  Term,  1901. 

Homicide — P.vrdon:     Judicial  notice — Officers  de  Jure  and  de  facto — 
Indictment — Accessory  and   cummun   design — Homicide   resultino 
from  unlawful  act — Evidence  of  accomplice — Explanation  to  im- 
peaching questions — Evidence — Instructions. 

1.  A  pardon  can  be  produced  in  evidence,  without  any  special  plea 

being  entered. 

2.  The  Supreme  Court  takes  Judicial  notice,  of  the  signature  of,  nnd 

who  is,  the  Governor  of  the  State. 

3.  W.    S.   Taylor   receiving  a   certificate   of   election   as  Governor   of 

Kentucky  became  prima  facie  the  Governor,  subject  tb  a  contest 
for  the  office.  A  contest  being  liad,  and  the  Legislature  deciding 
it  against  Taylor  and  in  favor  of  William  Goebel,  the  latter 
became  Governor,  and  upon  his  death  the  dut'es  of  the  office 
devolved  upon  the  Lieutenant  Governor,  who  assumed  the  office. 
The  mere  fact  that  Taylor  held  possession  of  the  office  and 
records  in  the  capitol  building  did  not  constitute  him  a  de  facto 


For  cases  lu  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
tblB  volume. 


POWERS  V.  COMMONWEALTH. 


465 


officer.  His  attempt  during  sucli  period  to  pardon  the  defendant 
was  witliout  authority  and  void. 

4.  The    indictment,    though    in    one    respect   might    seem    somewhat 

obscure,  conveys  the  meaning  of  tlie  accusation  with  sufficient 
clearness  to  be  understood  by  a  person  of  ordinary  intelligence 
and  is  therefore  sufficient. 

5.  While  it  is  to  be  regretted,  that  in  a  case  concerning  which  so 

much  feeling  existed,  there  was  left  an  opportunity  to  criticise 
the  method  of  selecting  extra  jurors,  that  matter,  and  a  debate 
which  occurred  between  opposing  counsel,  are  not  passed  upon, 
as  they  are  not  liable  to  occur  uijon  another  trial. 

6.  Writings  or  words  by  a  person,  that  are  not  in  the  nature  of  an 

act  done  in  the  furtherance  of  a  common  design,  but  merely 
tending  to  implicate  others  and  not  himself,  are  not  admissible 
in  evidence  to  prove  a  conspiracy. 

7.  A  denial  by  a  witness  that  he  made  a  collateral  statement.  Is  not 

the  subject  of  contradiction. 

8.  When  an  imi)eachlng  question  is  asked  on  cross-examination,  the 

witness  should  be  allowed  an  opportunity  to  explain. 

9.  Minority  opinion  as  to  evidence  of  witnesses  Reed  and  Hazlcwood. 

10.  Evidence   being   given   as   to   declarations,  etc.,   of   persons  at  an 

assembly,  the  •  defendant  should  have  been  permitted  to  show 
what  resolutions  were  then  and  there  adopted. 

11.  Reference  to  reasonable  doubts,  need  not  be  repeated  in  the  same 

instruction,  when  its  mention  applies  to  the  entire  instruction. 

12.  The  evidence  clearly   showing  that  defendant  was  not  present  at 

the  time  of  the  offense  it  was  not  error  in  an  instruction  to  per- 
mit a  verdict  of  guilty  "whether  he  was  present  at  the  time  of 
the  killing  or  wounding  or  not." 

13.  Where    It    is    reversible   error   or   not,   the   fourth   Instruction   is 

criticised,  because  it  made  the  defendant  liable,  if  the  killing 
was  "in  pursuance  of  such  advice,  counsel,  or  encouragement," 
and  omitting  to  require  that  the  killing  was  induced  thereby; 
also  that  the  instruction  was  laden  with  unnecessary  reference 
to  a  supposed  conspiracy  to  bring  armed  men  to  the  city  of 
Frankfort. 

14.  It  is  not  error  to  explain,  or  amend,  an  Instruction  after  argument 

is  open,  if  sufficient  opportunity  is  allowed  for  counsel  to  com- 
ment on  the  instruction,  as  so  explained  or  amended. 


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Appeal  from  Circuit  Court,  Scott  County. 

Caleb  Powers,  convicted  of  murder,  appeals.     Reversed. 

Payntcr,  C.  J.,  and  White  and  Hohson,  J.  J.  dissenting. 

John  Young  Brown,  W.  C.  Oicens,  R.  C.  Kinhcad,  Jos  C 
Sims,  Geo.  Denny,  and  /.  B.  Finnell,  for  the  appf  ^lanl. 

Vol.  XTII— 30 


IN: 


!! 


I- 


4 


l^-i^'- 


466 


AMERICAN  CRIMINAL  REPORTS. 


Roht.  J.  Brechinridge,  R.  B.  Franklin,  T.  C.  Campbell,  ami 
Jos.  L.  Meyer,  for  the  Coimuonwcalth. 

Du  Rellk,  J.  This  appeal  is  from  a  jiulgiuent  of  convictinn 
in  the  Scott  Circuit  Court,  to  which  tiie  case  was  transferred 
by  change  of  venue  from  Franklin  County,  upon  an  indictment 
charging  appellant  as  accessory  before  the  fact  to  the  murder 
of  William  Goebel.  The  indictment  charges  the  murder  to  hiive 
been  the  result  of  conspiracy  between  appeUant  and  others,  and 
is  as  follows:  ''The  grand  jury  of  the  county  of  Franklin,  in 
tlie  name  and  by  the  authority  of  the  Commonwealth  of  K'  n- 
tucky,  accuse  Caleb  Powers  of  the  crime  of  being  accessory  he- 
fore  the  fact  to  the  willful  murder  of  William  GocImI,  eomnut- 
ted  as  follows,  viz.:  The  said  Caleb  Powers,  in  the  said  eounty 
of  Franklin,  on  the  30th  day  of  January,  A.  D.  P.)()(),  and  Im- 
fore  the  finding  of  this  indictment,  unlawfully,  willfully,  felo- 
niously, and  of  his  malice  aforethought,  and  with  intent  to  \)v'u\<x 
alwut  the  death  and  procure  the  murder  of  Willam  (Joeln-l,  diil 
consi)ire  with  W.  11.  Culton,  F.  W.  Golden,  Green  Golden,  .John 
L.  Powers,  John  Davis,  Charles  Finley,  W.  S.  Taylor,  Henry 
Youtsey,  James  Howard,  Berry  Howard,  Harlan  Whitaker, 
Richard  Combs,  and  others  to  this  grand  jury  unknown,  and 
did  counsel,  advise,  enc(mrage,  aid,  and  procure  Henry  Voutsey, 
James  Howard,  J3erry  Howard,  Harlan  Whitaker,  Richard 
Combs,  and  other  persons  to  this  grand  jury  luiknown,  unlaw- 
fully, willfully,  feloniously,  and  of  their  malice  aforethonglit, 
to  kill  and  nuirder  William  (Joelx-l,  which  one  of  the  last  Hve 
above-namcil  persons,  or  another  [lerson  acting  with  them,  Iml 
who  is  to  this  grand  jury  imknown,  so  as  aforesaid  th(  n  a!id 
there,  thereunto  bv  the  said  Caleb  P"wers  before  the  fact  conn- 
seled,  advised,  encouraged,  aidecl,  and  procured,  did,  by  shoot- 
ing and  wounding  the  said  G(K'l)el  with  a  gun  or  pistol  loaded 
with  powder  and  other  exi)losives  and  leaden  and  steel  ball  and 
other  hard  substances,  and  from  which  said  shooting  and  wound- 
ing the  said  Goebel  died  on  the  third  (.'{<!)  day  of  Febrmiry, 
15)00,  bnt  which  of  said  last  alKive-mentioned  persons,  so  as 
aforesaid,  actuallv  fired  the  shot  that  killed  the  said  (iix'bel  is 
to  this  grand  jury  unkno\ni ;  against  the  peace  and  digiiity  of 
the  Commonwealth  of  Kentucky." 

In  the  discussion  of  the  questions  involved,  we  shall  state 
such  facts  onlv  as  are  ncccssarv  to  a  corrcft  miderstanding  of 


l>hdl,  and 


conviction 
ransfcri'cd 
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thcrs,  iind 
anklin,  in 
1  (if  K'.  n- 
('^Ai)ry  \\v- 
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ii<l  c'onnlv 
0,  and  !«■- 
nllv,  fclii- 
it.  to  hriiiii- 
oclnd,  did 
den,  .Idliii 
iir,   llcnrv 
Wlii  taker, 
iiiwn,  and 
'  Voutscv, 
Richard 
•n,  nnlaw- 
ivfliuniiht, 
V  last  tivc 
tlicni,  lint 
then  and 
fact  ('(inn- 

!)V    slldut- 

lol  loaded 
I  ball  and 
id  wonnd- 
I'Y'hrnarv, 
us,  so  a.< 
Goclnd  is 
iiniity  of 

mil  state 
nding  of 


POWERS  V.  COMMONWEALTH. 


467 


tliC  (luestions  considered  and  decided,  and  those  facts  will  be 
staled  in  connection  with  the  questions  to  which  they  relate. 

On  the  trial  a  pardon  was  procured,  purporting  to  have  been 
issued  by  W.  S.  Taylor,  as  Governor  of  Kentucky,  dated  March 
10,  1900.  The  production  of  this  paper  was  accompanied  by 
filinf?  what  is  termed  in  the  record  a  "plea  of  pardon."  As  wo 
.understand  the  law,  no  plea  was  necessary.  The  simple  produc- 
tion of  a  valid  pardon  of  the  offense  whereof  appellant  Avas 
chart;('d  would  put  an  end  to  the  proceedings,  and  render  void 
any  proceeding  thereafter  taken  in  the  trial. 

In  order  to  decide  the  validity  of  the  paper  produced  as  a 
panlon,  wp  must  consider  the  situation  at  the  time  ic  was  issued. 
This  court  takes  judicial  notice  of  the  official  signature  of  any 
olticer  of  this  State  (Ky.  St.  §  1()25),  and  is  presumed  to  know 
judicially  who  is  the  executive  of  the  State  at  any  time  the  fact 
is  called  in  question  (Dewees  v.  Colorado  Co.,  32  Tex.  570). 
See,  also,  12  Am.  &  Eng.  Enc.  Law,  p.  152,  and  notes.  It  is 
conceded  by  counsel  upon  both  sides  that  the  court  can  take 
judicial  cognizance  of  the  facts  necessary  to  the  decision  of  this 
qnestion. 

On  January  30,  1900,  William  Goebel,  a  member  of  the  Ken- 
tucky Senate,  was  shot  by  an  assassin  in  the  state-house  yard, 
in  front  of  the  capitol  building,  at  Frankfort,  and  died  some 
days  later.  This  occurred  during  a  period  of  political  excite- 
ment and  bitterness  pt^haps  unexampled  in  the  history  of  the 
Commonwealth.  William  Goekd,  William  S.  Taylor,  and  John 
Young  Brown  had  been  candidates  for  the  office  of  Governor  of 
Kentucky  at  the  preceding  November  election.  The  State 
Hoard  of  Election  Commissioners,  cle<'ted  under  the  act  oT 
^larch  11,  lSi)8,  examined  and  canvassed  the  returns  of  elec- 
tion and  issued  a  certificate  of  election  to  W.  S.  Taylor.  This 
gave  a  prima  facie  title  to  the  office  to  Taylor,  who  accordingly 
was  duly  inaugurated  as  Governor,  took  the  oath  of  office,  and 
took  possession  of  the  State  Building,  and  the  archives  and  rec- 
ords appertaining  to  the  office.  This  did  not  give  him  an  abso- 
lute, indefeasible  title  to  the  office  of  Governor,  but  his  title  was 
subject  to  k^  defeated  by  the  determination  of  a  contest  for  the 
office.  State  v.  Superior  Court  of  Snohomish  Co.,  17  Wash.  12, 
48  Pac.  741,  61  Am.  St.  Rep.  S93.  Until  the  certificate  was  set 
aside  in  some  appropriate  proceeding,  he  was  entitled  to  retain 
possession  and  perform  the  duties  of  the  office  without  interfer- 


ii 


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468 


AMERICAN  CRIMINAL  REPORTS. 


once.  If  the  time  should  pass  within  which  sndi  procec(1iin>' 
might  he  instituted,  that  title  hecame  ahsdiute  and  indet'easiiih . 
A  contest  was  instituted  hy  GocIm'I  lx>f'ore  tlie  Lcgi.slat.uii',  iuid 
was  pending  at  the  time  of  the  murder,  as  were  also  contcsis 
before  the  State  Board  of  Contest  for  the  minor  State  otHcis, 
certiHcates  of  election  to  which  had  l)een  issued  to  the  candi- 
dates iijMm  the  same  ticket  with  Taylor.  After  the  shooting,  tlic 
militia  was  called  out  by  Taylor,  and  the  Legislature  prevented 
from  meeting  in  the  State  Capitol,  and  at  certain  other  places 
at  which  they  attempted  to  hold  meetings.  The  records  of  the 
Legislature  show,  however,  that  a  meeting  was  held,  at  which 
it  was  determined  by  tlie  Legislature  that  William  Goehel,  jind 
not  William  S.  Taylor,  had  Ix'cn  elected  Governor  of  Kentucky, 
and  that  d.  C.  W.  Jicckham,  and  not  John  Marshall,  had  been 
elected  Lieutenant  Governor.  After  GiK-bel's  death,  Taylor 
retained  possession  of  the  executive  building,  archives,  and  rec- 
ords, and  continued  to  act  as  Governor.  Jjcckham  opened  an 
office  in  the  Cajiital  Hotel,  a  few  blocks  away  from  the  capitol, 
which  was  called  the  "Governor's  Otlice,"  and  he  also  acted  as 
Gcivernor.  There  were  thus  two  persons  present  at  the  seat  dl' 
government,  each  claiming  to  Ix^  Governor  dc  jure,  and  vm\\ 
assuming  to  jierform  the  duties  of  the  t)tfice.  Only  one  of  ilieiii 
could,  by  any  possibility,  be  Governor  dc  jure,  and  only  one  of 
them  could  l)e  Governor  de  facto.  State  r.  Jilossotn,  IJ)  Xev. 
.'512,  in  Tac.  4;3<t.  The  legal  doctrine  as  to  de  facto  olHcers  rests 
upon  the  prin-iplo  of  i)rotection  to  the  interests  of  the  public 
and  third  parties,  and  not  upon  the  rights  of  rival  claimaiit<. 
The  law  validates  the  acts  of  de  facto  othcers  as  to  the  public 
and  third  persons  u})on  the  ground  that,  though  not  otKcers  ^/c 
jure,  they  are  in  fact  oHicers  whose  acts  ])ublic  ])olicy  reipiires 
sh(juld  Ix!  considered  valitl.  Oliver  v.  Citij  of  Jersey  Citi/  (  X. 
J.  Err.  &  Api>.)  44  Atl.  70!),  4S  L,  K.  A." 412.  So,  when  both 
arc  acting  otHcially,  that  one  who  has  the  title  de  jure  is  both 
de  jure  and  de  facto  otlicer.  Esjiecially  must  this  be  so  when 
the  act  whose  validity  is  questioned  is  not  an  act  affecting  the 
rights  of  third  parties,  but  is  an  act  of  the  Commonwealth's 
grace  asserted  against  the  Commonwealth.  So  the  question 
is  narrowed  to  an  inquiry  as  to  who  was  de  jure  Governor  on 
March  10,  1900.  The  Ix^gislative  record  shows  tinit  the  Gen- 
eral Assembly  dGtermined  the  contest.  T^y  the  Goelwl  Elec- 
tion Law  of  March  11,  1898  (Ky.  St.  §  'l59Ga,  subsec.  11), 


n'\,  iiiid 


POWERS  V.  COMMONWEALTH. 


469 


that  decision  was  a  jiulginont  determining  the  title  to  the  office. 
It  was  a  self-executing  judgment:  ''When  a  new  election  is 
ordered  or  the  incundient  adjudged  not  to  be  entitled,  his  powers 
sliiill  immediately  cease,  and  if  the  oilicc  is  not  adjudged  to  an- 
(itlier  it  shall  be  deemed  to  be  vacant."  If  this  judgment  of  the 
1^'gislature  was  valid  and  linal,  it  settles  tlu;  (luostion.  In  an 
opinion  of  this  court,  from  which  the  writer  ttf  this  opinion  dis- 
sented eni[)hatically,  and  in  the  views  of  which  dissent  .ludgo 
O'Hear  concurs,  in  the  case  of  Taijlor  i\  licckham,  108  Ky. 
27S,  ^1  Ky.  L.  R.  IT-T),  r>U  S.  W.  177,  49  L.  U.  A.  25S,  it  was 
snid  that  the  judgment  of  the  Legislature  was  final  and  con- 
chisive.  That  decision  settled  the  (piestion  finally,  and  the 
])iirdiin  must  1k'  adjudged  invalid.  The  authorities  npon  this 
question  are  collated  more  fnlly  in  the  opinion  of  Jndge  White, 
v.Iii)  c(»ncurs  upon  this  (piestion. 

The  next  question  in  logical  order  is  as  to  the  snffieiencv  of 
tlie  indictment.  It  has  been  set  out  in  full.  It  is  objected  that 
tie  acts  constituting  the  offense  are  not  stated  in  "ordinary  and 
concise  language,"  so  as  to  emible  one  of  "common  understand- 
ing to  know  what  is  intended."  We  think  the  objection  is  not 
well  taken.  The  in<lictmcnt  •notifies  the  defendant  that  he  is 
chargeil  with  conspiring  to  procure  the  murder  of  Goebel,  that 
he  procured  the  murder,  and  that  the  murder  was  done  by  some 
one  who  was  by  the  defendant  counseled  and  procured  to  do 
the  act.  In  attemjiting  to  parse  this  indictment,  there  is  at 
lirst  blush  some  difficulty.  The  use  of  the  word  "which"  in 
the  clause,  "which  one  of  the  last  five  above-named  ])ersons," 
etc.,  is  somewhat  ambiguims;  but,  on  careful  examination,  it 
seems  to  Ih'  used  as  a  relative  pronoun,  whose  antecedent  is 
found  in  the  clause,  *'to  kill  and  murder  William  (Joebel." 
There  is,  however,  no  trouble  as  to  the  meaning,  nor  do  we 
think  a  |)erson  of  ordimiry  intelligence  could  Ix'  misled  as  to 
the  nature  of  the  charge.  As  said  by  the  Massachusetts  court  in 
Com.  V.  Call,  21  Pick.  :^U^'.  "The  grammatical  and  critical 
(►bjections,  however  ingenious  and  acute  they  may  be,  cannot 
l)revail.  The  age  has  gone  by  when  bad  Latin,  or  even  bad  Kng- 
lisli,  so  it  l>e  suHiciently  intelligible,  can  avail  against  an  indict- 
ment, declaration,  or  plea.  The  ])assage  objected  to  may  be 
sftmewhat  obscure,  but,  by  a  reference  to  the  context,  is  capable 
of  pretty  certain  interpretation."  In  our  opinion,  the  indic^ 
nient  is  sufficient. 


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470 


AMERICAN  CRIMINAL  REPORTS. 


In  the  grounds  relied  on  in  the  motion  for  a  new  trial  it  is 
stated  that  the  court  overruled  the  motion  of  api)ellant,  iilicr 
the  regular  panel  of  the  jury  was  exhausted,  to  draw  the  reiniiiii- 
in^  names  necessary  to  com])leto  the  jury  from  the  jury  wlici'l. 
It  is  to  he  regretted  that,  in  a  case  ccmcerning  which  so  niucli 
feeling  existed,  the  sintple  and  easy  mode  was  not  adopteil  wiiich 
would  have  put  heyond  cavil  the  question  of  the  accused  having 
a  trial  by  jury  iiii])artially  selected.  This  will  doubtless  be  dduo 
upon  the  succeeding  trial. 

We  need  not  consider  liie  debate  between  court  and  counsel, 
which  is  complained  of  in  the  argument,  as  it  is  not  necessiiry  to 
the  decision  of  the  case,  and  in  the  nature  of  things  caMiHit, 
upon  a  subsequent  trial  wcur  as  it  did  in  the  trial  now  untlcr 
review. 

Complaint  is  nuulo  that  the  witness  Watts  was  permitted  td 
state  a  conversation  with  an  unknown  person,  who  nuide  tlircnis 
of  violence  concerning  the  Legislature.  It  was  afterwards 
shown  by  the  witness,  however,  that  he  subsequently  saw  tic 
imkncmii  person,  in  the  uniform  of  a  sergeant,  among  tlie 
guards  in  charge  of  the  (^ijjitol  sfpiare.  On  the  trial  of  otl'enses 
ctaumitted  in  furtlifrance  of  cons])iracies,  there  nuist  be  coiisitl- 
crablo  latitude  l(;ft  to  the  discretion  of  the  trial  court  in  the 
admission  of  testimony  of  circumstances  tending  to  show  th;it 
acts  aj)parently  isolated  have  sprung  from  a  conunon  objt'ct.  As 
said  by  Judge  King  in  Coin.  v.  Mci'han,  2  Pars.  Kq.  ('as.  ;5(;s : 
"The  adequacy  of  the  evidence,  in  prosecution  for  a  criniiuiil 
consjiiracy,  to  prove  the  existence  of  such  a  conspiracy,  like 
other  questions  of  the  weight  of  evidence,  is  a  question  for  I  lie 
iurv,"  This  testimonv  seems  to  have  been  admissible  to  iro  to 
the  jury  for  what  it  was  worth,  in  suj)port  of  the  theory  <if  the 
Commonwealth  as  to  the  miture  of  the  co!is])iracy  chargi'd.  Tlu 
rule  as  to  the  admission  of  t/idence  in  such  cases  is  nowhere  bet- 
ter stated  than  in  Carson's  edition  of  Wright  on  Criminal  Con- 
spiracy (i)age  2 IS).  Says  ^Mr.  Carson:  "The  concise,  yet 
compn hensive,  statement  of  Air.  Archbold  may  be  accepted  iis 
a  correct  e])it()mc:  'Wherever  the  writings  or  words  of  any  of 
the  parties  charged  with,  or  implicated  in,  a  conspiracy  can  be 
considered  in  the  nature  of  an  act  done  in  furtherance  of  the 
common  design,  they  are  admissible  in  evidence,  not  only  as 
against  the  party  himself,  but  as  proof  of  an  act  from  Avhich, 
inter  alia,  the  jury  may  infer  the  conspiracy  itself.'    Wherever 


POWERS  V.  COMMONWEALTH. 


471 


tlio  writings  or  words  of  flucli  a  party  amount  to  an  admission 
iiicrcl.y  of  his  own  guilt,  and  cannot  be  deomcd  an  act  duiif  in 
furtli(rance  of  the  eonunou  design,  in  ti'at  case  tluy  can  he 
received  in  evidence  merely  as  against  the  j  arty,  and  nnt  as  evi- 
dence of  the  C(insj)iraey,  and  in  strictness  ouglit  not  to  he 
oti'ered  in  eviik-nce  until  after  the  conspiracy  had  heen  |)ri)ved 
nliiiudcj  hut  wherever  the  writings  or  words  tjf  such  a  parly,  not 
being  in  the  nature  of  an  act  done  in  furtherance  of  the  c<ini- 
nion  design,  merely  tend  to  implicate  others,  and  not  to  accuse 
hiiiisclf,  they  ought  not  to  Ix;  received  in  evidence  for  any  ])ur- 
jHise."  Tested  by  this  rule,  the;  langinige  testitied  to  by  the 
Avitness  ^McDonald,  as  to  a  conversati<in  between  two  unknown 
men,  in  no  wise  identified  as  mrndiers  of  any  conspiracy,  or  con- 
iiecleil  in  any  manner  with  those  alleged  as  the  co-conspirators 
with  a])pellant,  is  clearly  incomjietent. 

Tlie  testimony  of  the  witness  Sinclair  as  to  telegrams  was 
competent.  As  suggested  by  counsel  for  the  Connnonwenllli,  if 
true  it  would  tend  to  show  the  telegTams  were  written  and  sent 
before  the  killing. 

The  trial  court  refused  to  allow  the  witness  J.  C.  Owens  to 
testify  as  to  a  conversation  with  the  accomplices — witness  Wjinr- 
ton  (loldeii.  The  (luestion  sought  to  bring  out  the  fact  that 
(lolden  had  said  tlnit  some  one — possibly  meaning  one  of  the 
couns(>l  for  the  ])roseeution — "could  take  that  hundred  thousmid 
dollars  and  convict  .lesus  (^hrist  and  the  twelve  apostles."  Kvi- 
(leiitly  this  eonversati(!n  was  ask(  d  for  on  the  theory  that  it 
tendeil  to  show  the  witness  was  not  impartial,  and  that  he  had 
iin  int(>r(\st  in  the  result  of  th«>  ease.  It'  it  did  so,  it  was  not  col- 
lateral or  irreic  vant  to  the  issue,  and  Golden  having  been  asked 
ill  regard  to  it,  and  his  answer  being  adverse,  the  defense  would 
have  the  right  to  contradict  him  by  other  testimony  for  llio 
purpose  of  discrediling  him.  Steph.  Dig.  Ev.  art.  I'^O;  1 
Girenl.  Ev.  4K') ;  Schushr  r.  Slate,  SO  Wis.'lO"  (1!)  X.  W.  •]{)) ; 
3  Best,  Ev.  221.  But  we  are  unable  to  see  that  the  statement 
sought  to  1)0  ])roved  against  (jrolden  indicates  any  interest.  At 
the  most,  it  could  indicate  only  that,  in  his  opinion,  witnesses 
could  bo  obtained  by  bribery.  >so  inference  that  he  himself  had 
been  briU'd  can  be  drawn  from  the  langnage,  without  violent 
exercise  of  the  imagination.  Tn  our  opinion,  it  was  collateral 
to  the  issue  and  was  properly  I'xeluded. 

Some  of  the  witnesses  for  the  defense,  upon  cross-examination 
Avith  a  view  to  im]H'achment  by  ccmtradiction,  were  not  ]ioi'- 
niitted  to  explain  the  statements  they  made.     We  are  of  opinion 


■I'! 


1 1 


Hi' 


,i      li 


!i 


■  t 


'I 

I 


I 

I 


>:; 


J, .. 


ill 

ill'?  '■ 


n? 


I  til' 

■■ill! 


I  n 


472 


AMERICAN  CRIMINAL  REPORTS. 


tlint  tliLs  view  of  the  rule  is  too  narrow.     In  ."5  liost,  Fv.  i5  i220. 


what  we  rt'j^an 


I  as  ill 


icmorrcct  rnic  is  tlins  statcil  as  to  tin-  n(|iiir 


nient  that  the  witntss'  attention  shall  lie  ciilKtl  to  tlu;  su()im)^c,| 


conlriulu'tion; 


•Tl 


i(!  rnIc  winch  iircscnhcs  this  condition  rest- 


on  llic  principle  of  justice  to  the  witness.  'I'lie  tentlciicv  of  tjic 
evidence  was  to  impeach  his  veracity,  ihk!  ciiiiunon  jiisiicc  dc- 
niands  that  het'ore  his  credit  is  attacked  he  slmiild  have  an  oppur- 
Innity  to  dcndare  whether  he  made  such  slalciiieiits  t(»  the  persiii 
indicated,  and  to  explain  what  he  said,  and  what  he  inleiid(  (1 
and  meant  in  savin;;  it." 

The  court  rel'nsed  to  instruct  the  jury  that  the  statements  df 
the  witnesses  Keed  and  Ilazlewood  as  to  a  conversation  wiih  the 
witness  Sparks  should  he  eonsi(Iere(l  as  aflcctiiif;'  only  tlie  intei-- 
ost  and  credihility  of  Sparks.  These  statements  to  which  IJtcl 
ami  Ilazlewood  testilie(|  were  to  the  elVect  that  the  killiiiii'  nf 
tinelicl  had  Imcii  determined  upon,  and  pardons  prepnreil  t'nr 
the  perpetrators.  As:Miiniii,i;'  that  there  was  evidence  to  enmicci 
Sparks  with  the  conspiracy  cliar^icd,  these  declarations,  if  ai'nii- 
sihle,  weri'  evid(  nee  in  chief.  I»nt  we  do  not  think  they  were 
competent  at  all  as  apiinst  appellant.  They  were  not  part  i>i  the 
res  (/(shir,  or  such  as  tendeil  to  pi'omnte  the  conimcm  ohject. 
The  rule  is  thus  stated  in  Mr.  ('arsdii's  e(lition  (d'  Wright  ■>'\ 
Criminal  ('ons]iiracies:  ''Ihit  if  the  acts  and  de(darati<ins  cf  ii 
conspirator  with  tlie  accused  are  made  in  his  ahsence,  they  are 
not  ailmissihle  a.i;ainst  him  to  prove  either  the  h^'dy  of  the  cri'iu 
ur  the  existence  of  the  alleged  c(tTispiracy,  unless  they  either  sn 
accompany  the  ex(<'iitioii  of  the  cunininii  criminal  intent  as  lu 
become  part  of  the  res  (jcshtc,  or  in  themselves  tend  to  promote 
the  ciinniion  criminal  ohject.  The  acts  and  declarations  of  n 
eon-pirator,  to  i)e  adniissihle  in  evidence  to  ehar^c  his  t'ello-v-;. 
miHt  have  Ikm'U  eonconiitant  with  the  i)rincipal  act,  and  su  ci"- 
nected  with  it  as  to  constilule  a  part  of  the  res  (jfshic 


ca 


ses  .,f  (Jlnirsoii  r.  Stale,  II  Ohio  Si.  I'.'U,  and  Shilr  r 


Lnvk 


lit. 


4!>  X.  II.  .'>U,  fully  support  Mr.  Carson's  iexl,  as  does  also  tli" 
thii'd  instructicii  ^iven  hv  the  court  on  its  own  motion  in  .S/hV,v 
r.  Pruplr,  \-22  111.  1  {lil  X.  K.  N<i.->,  17  N.  K.  S'.'S,  ;;  Am.  St. 
Kep.  ;>:i())  :  "I'he  acts  of  each  defendant  should  1k'  considered 
with  iln'  same  care  and  scrutiny  as  if  he  alone  were  on  trial. 
If  a  coiis))iracy  having;  violence  and  munler  as  its  ohject  is  fully 
pro\('(l,  tluni  the  acts  and  declarations  of  each  conspirator  in 
furtherance  of  the  conspiracy  are  the  acts  and  declarations  of 
each  one  of  the  conspirators;   but  the  declarations  of  any  c(jn- 


'A'. 


^  220. 


If  n'(|iiiic. 

itioii  reels 
icy  ul'  III,, 
iisiicc  (I(- 
1111  <i|i)i(i|'. 
Ill'  |i('rs(.ii 
inicndcl 

incuts  (,{ 
Willi  111,. 

•  lie  iiitcf. 

licit  K,,.] 
killing  (if 
|i:irc(|    i',,|. 

()  CnlillCcI 

ir  Jii'nii>- 
licy  \vci',. 

'iiri  ol'  til,. 

Ill   iil)j",.,.i. 

Vi'i,ylit   ■.'! 

liniis  (if  ji 

.  tlicv  iirc 
tlic  critiK 
cirjicr  s(i 

Clll    JIS    t,,      ■ 

»  projiiutc 

lolls    of    i! 

■*   Id  l» »'.',■■;. 

<l    St(   (Mil- 

r."  Th,. 
.  Lor/i'iit, 
i  also  111'. 

ill  >Spics 

Am.  St. 
insidcrcrj 
oil  friiil. 
1  is  fully 

nilor  ill 
itions  (if 
miy  cdii- 


POWERS  V.  COMMONWEALTH. 


473 


spiriitDr  lieforc  or  after  May  4th,  which  tu<  niorcly  narrntivc  as 
Id  uliat  haH  been  or  wuuhl  bo  Uduo,  and  not  mudc  to  aid  in 
carryiiif^f  into  etlVt't  the  object  of  the  coii«i)iriicy,  arc  only  evi- 
dence against  the  one  who  nuikes  tlieiii."  We  cannot:  conceive 
l.ow  these  Htatenu'iits,  which  were  merely  narrative  of  what  had 
bcc4i  or  would  be  <hjiic,  could  be  lield  to  be  made  in  aid  of  the 
ol.jcct  of  the  conspiracy  charged.  What  is  here  said  as  to  the 
lolininiiy  of  lieed  and  IlazlewcjoJ  expresses  the  views  only  of 
.liidges  JUiKNAAi,  O'Ukau,  and  the  writer  of  this  opinion;  the 
iniijority  of  the  court  being  of  opinion  that  the  evidence  is  com- 
petent. 

On  .lanuary  2.5,  11)00,  as  shown  by  testimony  for  the  C'oni- 
nionwealth,  there  was  a  meeting  in  front  of  the  Capitol,  at  which 
speeches  were  made  and  resolutions  adopted.  Tcsliniony  was 
introduced  by  the  ConiiiHinweahh  of  actions  and  statements  of 
certain  persons  who  were  apparently  members  of  this  assem- 
blage,  indicating  violent  and  improper  intentions.  Tliis  evi- 
dence, we  think,  was  i)roper,  under  the  circumstances.  JJut  the 
defense  was  not  i)ermitted  to  show  what  the  resolutions  Avero 
wliicli  v/ere  adopted.  The  declarations  of  the  members  of  this 
niecling  were  admitted,  and  were  admissible,  (»n  tlio  ground 
that  lliey  went  acts  jjart  of  the  res  (jcstae,  and  were  tliemselves 
evidence  to  g<»  to  the  jury  to  show  the  existence  of  the  con- 
s]tiracv  charged.  If  the  statements  of  pers(»ns  in  the  crowd 
were  admissible,  the  defense  had  a  right  to  all  the  statements 
ot"  the  crowd  that  could  l)e  shown,  because  they  occurred 
at  the  same  time  and  place,  and  in  the  same  con- 
nection. If  the  Commonwealth  ])roved  part  of  what  was  done 
there,  liie  defense  might  jjrove  all  that  was  done;  if  the  Com- 
iiioiiwealtii  showed  violent  language  to  have  been  used,  the  de- 
fense had  the  right  to  show  that  iieaceable  Ian 


!,uaii<'  was  also 


UM(\ ;  and,  if  the  acts  or  expressions  of  individual  meuibers  of 
the  meeting  are  shown  for  the  purpose  of  showing  an  evil  intent 
in  all,  surely  the  otliciai  utterance  of  the  body  might  be  shown 
for  what   it  was  worth,  to  rebut  the  inference  that  the  views 


oi  tlu!   indivic 


lualg 


tl 


s  were  tlie  views 


of  tl 


le  entire  bod  v. 


In  1 


Koberson,  Ky.  Cr.  Law,  p.  140,  S  107,  the  rule  is  stated:  "The 
acts  and  declarations  of  the  defendant  and  his  associates  nniy 
be  received  in  evidence  as  well  in  his  favor  as  against  him,  when 
they  are  a  part  of  the  res  (jrstae,  or  a  conversation  offered  by 
the  prosecution,  but  not  statements  at  other  times," — referring 


•  ;  I 


m 


i 


■.u 


llfl  Itl 


nil 


i  t 


Hi' 


ii:i  m 


(  i  !   :! 


!i 


I  I  i,  J 
1.8  J 


I' 

t 

r  '■ 

il  k. 

!  1 

S 

'  ' :  i 

■  1 

i 

1-1 

i 

I  t 

! 

(i 

i 
i 

., 

h 

'.  k 

\     1 

474 


AMERICAN  CRIMINAL  REPORTS. 


I 


%  i 


to  Comdius  v.  Com.,  15  B.  Mon.  539.  The  introduction  of  tlio 
Commonwealth's  testimony  made  the  testimony  for  the  defence 
admissible. 

By  the  exceptions  to  the  -admission  and  rejection  of  testimony 
many  other  questions  of  evidence  are  preaei  ted  which  arc  mr 
referred  to  in  the  brirfs,  but  we  think  the  ])rinciples  which 
shoukl  govern  their  decision  have  lx?en  sntiiciently  stated  in  tliis 
opinion,  and  in  the  opinion  in  Howard  v.  Com.  (this  day  de- 
cided), 110  Ky.  350,  22  Ky.  L.  K.  1S45,  01  S.  W.  750.' 

We  shall  next  consider  the  instructions  of  the  court.  Tliero 
seems  to  be  no  objeeticm  to  the  tirst  instruction.  The  second  is 
objected  to  for  the  reason  that  there  is  no  repetition  of  the 
phrase,  "if  the  jury  believe  from  the  evidence  l)eyond  a  reasun- 
able  d(mbt."  This  phrase,  however,  at  the  beginning  of  the 
instruction,  clearly  applies  to  every  one  of  the  ingredients  de- 
tailed therein  as  constituting  guilt  of  the  offense  charged.  It 
not  only  applies  gramnuitieally,  but,  we  think,  could  not  be 
otherwise  understood  by  a  ju^rsim  of  average  intelligence. 

It  is  objected  to  the  third  instruction  that  it  permits  the  jury 
to  find  ap])enant  guilty  "whether  he  was  present  at  the  time 
of  the  shooting  or  wounding  or  not,"  and  that  the  jury  were 
thereby  pirmittcd  to  find  a  verdict  of  guilty  upon  the  theory 
that  he  was  present,  notwithstanding  he  is  charged  only  jis 
accessory  before  the  fact,  and,  if  present,  would  not  be  an 
accessttry,  but  a  principal,  in  either  the  first  or  second  degree. 
This  objection  is  not  tenable,  for  there  is  no  testimony  tendin;>- 
in  the  slightest  degree  to  show  that  appellant  was  present  at  llie 
time  of  tlie  shooting.  On  the  contrary,  all  the  testimony  shows 
he  was  elsewhere.  It  could,  therefore,  rmder  no  supposition, 
have  ]>rejudiced  him.  This  part  of  the  instruction  woubl  liav(> 
been  more  directly  applicable  to  the  case  presented  if,  instea<l 
oi  the  ])hrase  ipioted,  the  court  had  used  language  similar  to  tliat 
used  in  the  fifth  instruction,  "■although  ho  was  not  i)resent  at 
the  time  of  the  shooting  or  wounding." 

The  fourth  instruction  is  also  objected  to.  It  is  is  follows: 
•'If  the  jury  believe  from  the  evidence  beyond  a  reasonable  doubt 
that  the  defendant,  Caleb  Powers,  conspired  with  \V.  11.  ('ni- 
ton, F.  W.  Golden,  Green  Golden,  John  L.  Powers,  John  Davis, 
James  Floward,  Berry  Howard,  Charles  Finley,  W.  S.  Taylor, 
Ilarlan  Whitaker,  Bichard  Cond>s,  Henry  Youtsey,  or  either  or 
any  of  them,  or  other  person  or  persons  unknown  to  the  jury 


'a--: 


POWERS  r.  COMMONWEALTH. 


475 


acting  with  them,  to  Lring  ti  nuuibcr  of  armed  men  to  Frank- 
fort, for  the  purpose  of  doing  an  unlawful  or  criminal  act,  in 
tlie  pursuance  of  8U(!h  conspiracy  defendant  did  advise,  counsel, 
or  encourage  the  killing  of  memkrs  of  the  Legislature,  said 
William  Goekd  being  a  member  thereof,  and  said  GooIjoI  Avas 
killed  in  pursuance  of  such  advice,  counsel,  or  enconrageuient, 
then  the  defendant  is  guilty  of  murder,  whether  the  person  who 
perpetrated  the  act  which  resulted  in  the  death  of  William  Goe- 
bel  he  identified  or  not;  and,  if  the  killing  of  said  William 
Goeliel  was  C(inunitte<l  in  pursuance  of  such  advice,  counsel,  or 
encouragement,  and  was  induced  and  bnmght  about  ther(>l)\-,  it 
does  not  matter  what  change,  if  any,  was  made  by  the  conspira- 
tors, if  any  was  made,  as  to  their  original  designs  or  intentions, 
or  the  numner  of  aceoinplishing  the  unlawful  puv])(^se  of  the 
conspiracy."     Tiiis  in:-'' ruction  seems  open  to  the  objection  that, 
after  the  words,  ''and  said  Goelwl  was  killed  in  pursuance  of 
such  advice,  C(tuns(d,  or  encouragement,''  there  should  be  added 
the  words,  "and  said  killing  was  induced  thereby,"  or  an  e(piiv- 
aleiit  ex])ression.     ]t  is  also  (tbjectod  that  it  assumes  the  fact  to 
exist  that  GocIk'I  was  a  member  of  the  Legislature,  when  that 
was  a  matter  to  Ix?  proven. 

A  further  objection  to  this  instruction  is  that  the  recital  of  a 
cons])iracy  to  bring  armed  men  to  Frankfort,  for  the  purpose  of 
ddiiiii'  an  unlawful  or  criminal  act,  is  unnecessarv  to  the  in- 
structinn,  and  it  might  tend  to  eonfiuse  the  jury.  If,  Avithout 
any  conspiracy,  appellant  advised  and  counseled  the  killing  of 
members  of  the  l^egislature,  and  in  pursuance  of  such  aih'ice 
and  counsel,  and  induced  thereby,  the  killing  of  Goebel  was 
(lone,  he  was  guilty  of  murder,  without  any  reference  to  the 
question  whether  he  engaged  in  a  conspiracy  to  do,  or  to  ])ro- 
eure  the  doing  of,  sonu-  «tther  unlawful  act.  But  it  is  not  neces- 
sary to  consider  whether  these  objections  amount  to  reversible 
error. 

The  objections  to  the,  fiftli  and  sixth  instructions  do  not  soem 
to  us  to  l)e  valid. 

The  seventh  instruction  is  as  follows:  "The  court  instruct 
the  jury  that  if  they  Indieve  from  the  evidence  beyond  a  reason- 
able doubt  that  the  defendant  Caleb  Powers  conspired  with  W. 
JI.  Cultoii,  F.  W.  (lolden,  (Jreen  Golden,  John  L.  Powers,  John 
Davis,  Charles  Finley,  W.  S.  Taylor,  TTenry  Youtsey,  James 
Howard,  Perry  Howard,  Harlan  Whitaker,  Richard  Cumbs,  or 


;■  1 

f;  3 


m\ 


n ,  s 


1. :    n 


I  ill 

111! 


■: 


in 


li'i 


j 

-f. 

! 

!■■  '< 
! 

I 

\ 


i  ! 
i  ! 


I*  i : 


!  i^ 


3     I'i  5 


I 


*                 ■     f  ■ 

rl 

1 

' 

. :' 

i  ili   \  \ 

^1 

\W^A 

'■i       i    ■    ■'  1| 

j 

'   '  '  i  ;.  h    1  1 

1       f 

i 

1 

■     J 

Jm 

L 

476 


AMERICAN  CRIMINAL  REPORTS. 


; 


any  one  or  more  of  them,  or  with  some  other  person  or  jiersons 
nnknown  to  the  jury,  acting  with  them,  or  either  of  them,  to  do 
some  imhiwfnl  aet,  and  that  in  pursuance  of  such  conspiracy, 
or  in  furtlierance  thereof,  the  said  Henry  Youtsey,  James  How- 
ard, IJcrry  Howard,  Ilarh'xn  Wliitaker,  IJichard  Combs,  or  some 
one  of  them,  or  some  otlier  ])ersoii  nnknown  to  the  jury  actinii' 
with  tliem,  or  with  those  Avho  conspired  with  tlie  defendant,  if 
any  such  cons])iracy  there  was,  to  do  an  imhnvfnl  act,  did 
shoot  and  kill  William  Goebel,  the  defendant  is  gnilty,  although 
the  jury  nuiy  believe  from  the  evidence  that  the  ori;:;iiial  pur- 
])()se  was  not  to  pi'ocure  or  bring  about  the  death  of  William 
Goebol,  but  was  for  some  other  unlawful  and  criminal  pnr]>osc." 
After  the  instruction  had  been  given,  and  after  four  of  the  live 
speeches  n[)<)n  each  side  had  been  nuide  to  the  jury,  this  instruc- 
tion was  amended  as  follows:  "The  words  'some  nnlawfnl  act,' 
as  used  in  this  instruction,  mean  some  act  to  alarm,  to  excite 
terror,  or  the  infliction  of  bodily  harm."  We  do  not  regard  the 
ani(  ndnient  of  the  instruction  as  improper  on  account  of  the 
time  at  which  it  was  tlone.  If  the  court  erred  in  the  in>triu'tion 
given,  it  was,  we  think,  its  right  and  its  duty  to  so  amend  it  as 
coi'rcctly  to  state  the  law.  Abnndant  time  remained  for  tli(> 
disciissidii  to  the  jury  ;.f  the  amendment,  and  the  trial  court 
would  doubtless  have  further  extended  it  ni)on  that  accoinit  il" 
recjnesteil. 

In  considering  the  other  objections  to  this  instruction,  it  is 
necessary  to  examine  the  doctrine  of  the  responsibility  of  one 
conspirator  for  the  acta  of  i«is  co-conspirators  in  furtherance 
of  the  common  design,  although  not  specifically  intende<l  by  liiin. 
This  doctrine,  in  its  application  to  the  varying  facts  of  indi- 
vidual cases,  is  founded  upon  several  distinct  and  well-rec(g- 
nizeij  legal  ])rinciples,  not,  however,  always  distingtiislied  by 
the  earlier  writers;  and,  first,  there  is  the  common-law  doctrine 
which  transfers  the  evil  intcMit  of  a  i)erson  attempting  one  kind 
of  crime  to  the  unexpected  results  produced  by  his  acts.  if  a 
man  in  the  commission  of  a  wrongful  act,  were  it  only  a  civil 
trespass,  committed  another  wnmg  unmeant  by  him,  he  was 
punishable.  So,  if  ho  attempted  to  kill  one  individmil,  ami  by 
accident  killed  another,  whether  liy  striking,  shooting,  giving' 
poison,  or  in  any  other  way,  as  his  intent  was  murder,  and  slav- 
ing was  accomplished,  he  was  guilty  of  murder.  So,  also,  if, 
in  the  attempt  to  commit  one  variety  of  crime,  an  entirely  dif- 


POWERS  V.  COMMONWISALTH, 


477 


fcrent  crime  was  accidentally  accomplished,  tlic  malice  of  the 
intended  crime  was  imputed  to  the  act  done,  in  all  cases  where 
general  evil  intent  Avas  a  constituent  of  the  committed  act.  In 
the  ajji'lication  of  this  doctrine,  a  distinction  was  made  restincf 
upon  the  grade  of  the  intended  oifense.  If  the  crime  intended 
was  a  felony,  as  at  common  law  practically  all  felonies  were 
punishid)Ie  with  death,  either  with  or  without  henefit  of  clergy, 
the  fclitnious  intent  of  the  intended  crime  Avas  imjmted  to  the 
Cdiniiiitted  act,  and,  if  it  wei'e  homicide,  made  it  murder;  for 
it  was  considered  inmiaterial  whether  a  man  was  hanged  for 
one  felony  or  another.  If  he  succeeded  in  his  original  felonious 
design,  his  intent  was  suificiently  evil  to  justify  hanging.  If 
he,  hy  misadventure,  accomplished  another  offense  requiring 
aeneral  malevolence,  the  evil  intent  of  the  intended  act,  heing 
sutheient  to  justify  the  death  penalty,  was  imputed  to  t!ie  act 
committe<l.  His  intent,  if  successful,  was  worthy  of  death; 
the  deed  he  did  was  worthy  of  death,  if  it  had  that  intent; 
and  s(t  it  was  considered  hy  the  judges  as  making  no  ditferenco 
whether  the  eommitte<l  act  was  the  one  intended.  On  the  other 
hand,  if  the  intended  act  Avas  not  felonious,  a  resultant  homicide 
was  not  murder,  hut  numslaughter.  So  we  find  that  uidaw- 
fuHy,  hut  not  feloniously,  to  shoot  at  the  poultry  of  another, 
and  lh(  rehy  accidentally  to  kill  a  human  heing,  was  manshiugh- 
ter ;  t)ut  as  larceny  was,  at  common  law,  a  felony,  if  the  shooting 
were  <hine  with  intent  to  steal  the  poultry,  the  homicide  was 
murder.  Hut  as  with  advancing  civilization  the  savage  cruelty 
of  the  ancient  English  common  law,  under  which  some  hun- 
dreds of  offenses  were  y)unislie(l  with  death,  hecame  softened 
hy  statutory  amendment,  this  doctrine,  even  in  Great  Britain, 
hecame  modifieil.  The  reason  for  its  existence,  that  it  made 
no  diiferenee  to  the  prisoner  or  the  judges  for  what  reascm  the 
death  juMialty,  or  its  ))ractical  ecpiivalent,  Avas  inflicted,  having 
failed,  the  doctrine  itself  ceased  to  he  ap])lie(l  Avitli  its  ancient 
rigor;  and  in  Hog.  r.  Faulkner,  11)  Ping.  Kep.  57S,  avc  find  a 
case  in  which  a  sailor,  Avho,  in  attempting  to  steal  rum,  acci- 
dentally set  fire  to  the  spirits,  and  therehy  Imrned  the  shi]),  was 
held  not  guilty  of  arson.  An  interesting  discussion  of  this  doc- 
trine is  found  in  1  JJish.  XeAv  Cr.  Law,  c.  21. 

With  the  adoption  of  the  English  connnon  laAV  in  the  various 
jurisdictions  in  this  country,  and  its  modification  by  statiite, 
there  came  the  question  Avhether  this  doctrine  applied  to  statu- 


ill 


ii'lii 


W\ 


I  f- 


V't. 


V] 


t 

si 

i 

i 

< : 

I  s 


\V. 


,•1 


f  M  t 


M. 


1 . 1 


•- ) 


I: 
.1  iH 


478 


AMERICAN  CRIMINAL  REPORTS. 


tovy  felonies  Avliich  were  not  felonies  at  common  law.  In  riome 
of  the  jurisdictions  it  was  held  without  qualification  that  it  did. 
It  may  be  remarked  that,  in  many  of  the  earlier  cases,  the  at- 
tempted offense  was  abortion;  and  it  may  be  that  the  moral 
turpitude  of  this  offense,  not  at  couunon  law  a  felony,  had  efTcot 
in  (ktcrmijiing  the  question.  It  was  held  in  a  Maine  case 
(Smith  V.  State,  33  Me.  48,  54  Am.  Dec.  607),  and  the  same 
doctriiu'  was  announced  in  a  number  of  cases,  that  the  grade  of 
the  committed  offense  depended  upon  the  graduation  of  the  at- 
temptcil  offense  by  the  statute,  and  not  upon  the  common-law 
classification.  This  is  also  justified  upon  the  ground  that,  sucli 
an  atteui])'  being  done  without  lawful  purpose  and  dangerous 
to  life,  malice  is  imputed.  But  in  that  case  it  was  held  that 
procuring  a  miscarriage  resulting  in  death,  was  manslaughtir 
only,  as  such  procuring  was  a  misdemeanor.  This  doctrine  was 
emphatically  stated  by  Chancellor  Walworth,  delivering  the 
opinion  of  the  Xew  York  Court  in  People  v.  Enoch,  13  Wend. 
15J),  27  Am.  Dec.  1!)7,  holding  "that  as  often  as  the  Legislature 
creates  new  felonies,  or  raises  offenses  which  were  onlv  misdi'- 
nuanors  at  the  couunon  law  to  the  grade  of  felony,  a  new  class 
of  murders  is  created  l>y  the  application  of  this  principle  to  the 
case  of  killing  of  a  human  lx.'ingby  a  person  who  is  engaged  in 
the  perpetration  of  a  newly-created  felony.  So,  on  the  other 
hand,  when  the  Legislature  abolishes  an  offense  which  at  the 
couunon  law  v/as  a  felony,  or  reduces  it  to  the  grade  of  a  mis- 
demeanor only,  the  case  of  an  unlawful  killing,  by  a  person 
engaged  in  the  act  which  was  before  a  felony,  will  no  longer 
bo  considered  to  be  murder,  but  nnuislaughtt^r  merely." 

This  doctrine,  manifestly,  should  have  no  application  m  a 
jurisdiction  where,  as  in  Kentucky,  every  offense  punishable  ]>y 
confinement  in  the  penitentiary,  no  matter  for  how  sli<u't  a  term, 
has,  by  one  sweeping  enactment,  l)een  raised  to  the  grade  of 
felony  (Ky.  St.  Si  1127),  except  it  be  qualified  by  the  limita- 
tion foreshadowed  by  Mr.  Bishop  (1  Bish.  New  Cr.  Law, 
^  330),  "by  requiring  the  act  towards  the  proposed  crime  to 
have  a  natural  tendency  to  produce  the  miintended  result.'' 
This  limitation  has  been  indicated  in  a  nuud)cr  of  cases  of  at- 
tempted crime  whicii  resulted  in  the  conujiission  of  a  wrong 
not  intended.  It  has,  as  we  shall  see,  l)een  applied  with  strik- 
ing unanimity  in  the  modern  cases  of  cons])iracy.  We  take  it 
there  can  be  no  question  of  its  application  in  this  State.     To 


r 


^'|i:  *' 


POWERS  V.  COMMONWEALTH. 


479 


illustrate:  Under  our  statute,  the  removal  of  a  cornei-  stcno 
is  punishable  by  a  short  term  in  the  penitentiary,  and  is  there- 
fore a  felony.  If,  in  attempting  this  offense,  death  wore  to 
result  to  one  conspirator  by  his  fellows  accidentally  dropping 
the  stone  upon  him,  no  Christian  court  would  hesitate  to  apply 
this  limitation. 

This  doctrine  of  imputed  malice  was  a  pai*t  of  the  common 
law  as  to  conspiracy  (1  Bish.  New  Cr.  Law,  §  033),  though,  as 
said  by  Mr.  Bishop,  "the  books  furnish  little  judicial  reasoning 
on  the  question."  So,  also,  was  the  doctrine  that  "a  sane  man 
must  be  i)resumed  to  contemplate  and  intend  the  necessary,  nat- 
ural, and  probable  consequences  of  his  own  acts.  3  Grcenl.  Ev. 
§g  13,  1-i;  Eex  v.  Farrinylon,  Russ.  &  R,  207;  Com.  v.  Webster, 
5  Cush.  305,  52  Am.  Dec.  711."  3  Best,  Ev.  §  286.  Under- 
lying the  whole  law  of  conspiracy  is  the  doctrine  of  agency. 
As  said  by  Mr.  Bishop  (1  Bish.  New  Cr.  Law,  §  (531) :  "Since 
in  law  an  act  through  an  agent  is  the  same  as  in  person,  one  who 
procures  another  to  do  a  criminal  thing  incurs  the  same  guilt 
as  though  he  did  it  himself.  Xor  is  his  guilt  the  less  if  the 
agent  proceeds  equally  from  his  own  desires  or  on  his  own  ac- 
count." It  is  on  these  principles  that  it  is  said  in  Whart.  Cr. 
Law,  §  220 :  "All  those  who  assemble  themselves  together,  Avith 
an  intent  to  commit  a  wrongful  act,  the  execution  whereof  makes 
probable  in  the  nature  of  things  a  crime  noi  speeitically  de- 
signed, but  incidental  to  that  which  was  the  object  of  the  con- 
federacy, are  responsible  for  such  incidental  crime."  This  is  a 
correct  application  of  the  principle,  for  the  reason  that  "there 
is  a  general  presumption  in  criminal  matters  that  a  ]ierson  in- 
tends whatever  is  the  natural  and  probable  eonsecpiences  of  his 
own  action."  1  Phil.  Ev.  G32.  Besides  the  various  groups 
of  facts  which,  in  the  older  books,  are  held  to  constitute  murder 
under  one  or  the  other  of  these  princiides,  we  find  classed  with 
them  a  number  of  cases  where  the  responsibility  is  really  that 
of  principal  in  the  second  degree,  under  the  law  as  ncnv  admin- 
istered ;  that  is,  the  responsibility  of  one  "who  is  present,  lend- 
ing his  countenance,  encouragement,  or  other  mental  aid,  while 
another  does  the  act,"  and  who,  by  the  ancient  law,  was  acces- 
sory at  the  fact.  1  Bish.  Xew  Cr.  Law,  §  648.  They  are  thus 
grouped  because  the  responsibility  was  the  same,  whether  the 
homicide  was  committed  in  the  attempt  to  commit  a  felony,  and 
was  therefore  murder  under  the  doctrine  of  imputed  nuilice; 


n 


■Mm 


i-ir  lliS! 


1: 


ill 
ill: 


480 


AMERICAN  CRIMINAL  REPORTS. 


!■    it 


; 


i'^T. 


wliotliov  it  was  (lone  by  the  defendant  by  himself  or  his  iiirnit, 
oi'  "happened  in  tlie  execution  of  an  unlawful  design,  which,  if 
not  a  fcldiiv,  is  of  so  desperate  a  character  that  it  must  (ndi- 
narily  he  attended  with  great  hazard  to  life;  antl  a  fortiori,  if 
death  he  one  of  the  events  witliin  the  obvious  expectation  of  tli(> 
conspirators"  (  Fost.  (^rown  Law,  2(51;  if.  S.  v.  Boss,  1  (Inll. 
Cr2i,  21  Fed.  Cas.  899,  Fed.  Cas.  Xo.  10,196),  in  which  cnx" 
malice  was  imputed  from  the  dangerous  nature  of  the  act  en- 
gaged to  he  (hme;  or  whether  it  occurred  with  the  defendant 
standing  hy  and  ready  to  help,  if  necessary,  in  which  casc^  Ik. 
was  accessory  at  the  fact  hy  the  ancient  law,  and  aider  ami 
abettor  and  principal  in  the  second  degree  under  the  present 
practice.  Illustrating  this  grouping  of  crimes,  we  find  it  staleil 
,.  1  Hale,  P.  C.  441  (quoting  from  Mr.  Dalton,  p.  2H): 
^ot^,  also,  that  if  divers  persons  come  in  one  comi)anv  ti 
do  any  unlawful  tiling,  as  to  kill,  rob,  or  beat  a  man,  or  to  enui- 
mit  a  ri<it,  <ir  to  d(i  any  otlier  trespass,  and  one  of  them  in  dnini; 
thereof  kill  a  man,  tiiis  shall  Ik?  adjudged  murder  in  them  ill 
that  are  ])resent  of  that  party  abetting  him  and  consenting  to 
the  act,  or  ready  to  aid  him,  although  they  did  but  look  on.'' 
And  in  1  East.  P.  C,  257,  it  is  said:  ''Where  divers  ])ers(in'^ 
resolve  generally  to  resist  all  opposers  in  the  conmiission  of 
any  breach  of  the  peace,  and  to  execute  it  with  violence,  or  in 
such  a  manner  as  naturallv  tends  to  raise  tumults  and  atfrnv  •, 
as  by  committing  a  violent  disseisin  with  great  numbers,  or 
going  to  beat  a  man,  or  rob  a  park,  or  standing  in  opposition  to 
the  sheriif's  ])osse,  they  nuist,  at  their  ju'ril,  abide  the  event  of 
their  actions."  As  we  have  indicated  with  regard  to  utiintende(l 
results  of  intended  wrongful  acts  done  ]>v  the  otFender  iji  ))erson, 
the  common-law  doctrine  of  imputed  felonious  intent  has  been 
modifie<l.  With  much  greater  uniformity  has  this  doctrine  l)e(  n 
disregarded  in  cases  of  conspiracy,  so  that  for  many  years  the 
test  of  guilt  in  such  cases  has  in  no  wise  depended  upon  the 
doctrine  of  imputed  felonious  malice,  but  either  upon  the 
doctrine  of  aider  and  abettor,  or  upon  the  doctrine  that  tiie  act 
for  which  the  accused  is  to  be  held  responsible  must  be,  cither 
expressly  or  by  implication,  within  the  scope  of  his  agency,  aiui 
upon  the  legal  presumption  that  ho  intends  the  necessary  or 
probable  consequences  of  his  acts,  whether  done  by  himself  or 
through  the  agency  of  another.  In  every  case  his  will  must 
contribute  to  the  thing  actually  done.     This  change  has  taken 


POWERS  V.  COMMONWEALTH. 


481 


place  in  strict  accord  with  the  principles  of  growth  which  arc  a 
part  (if  the  coniinon-law  system.     The  ancient  doctrine  in  fine 
of  ils  applications  dejiendeil  njmn  the  existence  in  the  accnsed 
"of  a  depraved,  wicked,  and  malignant  spirit,"  which  wonld 
justify  the  death  penidty  if  he  sncceeded  in  his  nndertaking. 
That  spirit  was  supposed  to  exist  whenever  the  ace  atteiiii)ted 
was  a  relmiy.      Ihit  surh  u  doctrine,  manifestly,  can  have  no 
iipplicalioM  to  a  class  of  oifenscs  tlu^  connnissioti  of  which  docs 
imt,  and  cannot,  indicate  such  a  spirit.     And  when,  in  many 
i.(  the  States  of  this  country,  we  made  the  (pieslion  of  felony 
depend  upon  the  j)lace  in  which  a  bri(^f  iniprisoninent  might  he 
passed,  and  acts  were  made  statutory  felonies  which  hy  the  an- 
(■ient  law  w(  re  not  oifenscs  at  all,  and  were  then  not  even  con- 
sidered to  Iw  morally  wrong,  tlu;  doctrine  ihat  felonious  malice 
(MiuliI  Ik'  imputed,  so  as  to  transform  incidental  homicide  into 
inunh'r,  parsed  away  forever.     The  reason  of  the  rule  passing, 
die  rnle  [ia<si'd  also;  and,  in  ])lace  of  looking  to  the  gradua- 
tjeii  of  the  attempted  wnmg  under  the  statutory  classilication, 
we  look  lo  that  on  which  the  ancient  classilication  was  founded, 
— "the  depraved,  wick(<l,  and  maligiunit  spirit"  which  the  of- 
fender ;!('iually  had  in  his  heart,  or  which  we  impute  to  him  ho- 
caiise  we  .siipp<,s<'  him  to  have  intended  the  necessary  or  prol)al)le 
ciiii-^e<pi<  nces  of  that  which  he  actmilly  did  or  tried  to  do.    This 
is  upon  the  wise,  just,  and  humane  principle  which  has  cnahlcd 
the  common  law  to  adapt  itsilf  to  the  changing  necessitie-i  of 
Ininian  soci(^ty,  and  has  made  it,  as  Burke  said,  "an  edifice 
having  the  principles  ot'  growth  within  itself."     The  law,  as 
declared  to-day,  is  in  exact  accord  with  what  has  been  said.     It 
i;;  so  stated  in  the  textdiooks  and  the  cases. 

In  1  Koherson,  ivy.  Cr.  Law,  pp.  1.'}-"),  131-,  J;  101,  it  is  said: 
"No  responsibility  attaches,  liowever,  for  acts  not  contemplated, 
and  which  are  not  Avithin  the  purpose  of  the  conspiracy,  or  the 
natural  conseipietice  of  executing  that  pur))ose;  and  the  (piestion 
is  for  the  jury  v/hether  the  act  done  was  in  furtherance  of  the 
ctiiumon  pur[)ose,  or  independent  of  it,  and  without  any  previous 
cnncert." 

In  the  article  on  "Conspiracy,"  by  Mr.  Archibald  R.  Watson 
t'i  Am.  iV  Eng.  Enc.  Law,  270),  the  doctrine  as  to  the  rcspimsi- 
hility  of  a  conspirator  for  acts  of  co-conspirator  is  thus  stated: 
"Wlien  individuals  associate  tliemselves  in  an  unlawful  enter- 
prise, any  act  done  in  pursuance  of  the  conspiracy  by  one  of 

Vol.  XIII— 31 


i,t! 


['ji 


i  :. 


1  1 


482 


AMERICAN  CRIMINAL  REPORTS. 


the  conspirators  is,  in  legal  contemplation,  the  act  of  all.  AipI 
this  mutual  co-equal  responsibility  of  each  conspirator  for  the 
ji.cts  of  his  associates,  clone  pursuant  to,  and  in  furtherance  ni 
the  common  (lcsii>;n,  extinds,  as  well,  to  such  rcvsults  as  arc  the 
mitural  or  probable  consequences  of  such  acts,  even  though  such 
consequences  were  not  specilicaliy  intendc  d  as  part  of  the  orig- 
inal plan.  This  dcwtrine,  however,  holding'  each  eonsi1ir:itiir 
liable  for  the  acts  of  his  associates,  as  well  as  for  the  conse- 
quences of  such  acts,  is  subject  t<j  tiie  restriction  indicated  in 
the  statement  of  the  rule,  nauioly,  that  it  is  only  for  such  nets 
as  are  naturally  or  ne?e-sarily  done  pursuant  to  and  in  further- 
ance of  the  conspiracy,  and  for  the  natural  or  necessary  coine- 
(pu'uces  of  such  acts,  that  a  co-couspirator  is  responsible.  Ami 
it  is  for  the  jury  to  determine  whetlier  an  act  done  by  i\  nicm- 
ber  of  a  conspiracy  is  done  in  furtherance  of  the  counnoii  'le- 
sign,  as  well  as  what  are  the  natural  and  necessary  consetpiences 
of  such  acts." 

In  ^farUn  v.  Stale,  SO  Ala.  ll.^>  (S  South  23)  (18  Am.  St. 
Rep.  01),  a  caso  of  murder,  it  w;is  said:  ''When  two  or  nn  re. 
persons  enter  upon  an  unlawful  enterjn*ise,  with  a  eonnnnn  pin- 
])ose  to  aid,  a-ssist,  advise,  and  encourage  each  other  in  wbatcvi  r 
may  grow  out  of  the  enteri)riso  U])ou  which  they  enter,  each  is 
responsible,  civilly  and  criminally,  for  everything  which  iiuiy 
consecpiently  and  jtroxiiuately  result  frnm  such  tudawful  pur- 
pose, whether  s]M'eifically  contemplated  or  not,  and  whether 
actiuilly  perpetrated  by  all,  or  less  than  all,  of  the  couspiratur-. 

.  .  *lt  should  1k'  obs(>rv(d,  liowevc^r,  that,  while  the  ]):irt:es 
are  responsible  for  consecpu  lit  acts  grcAving  out  of  the  general 
<lesign,  they  are  not  for  indeiiendent  acts  growing  otit  of  'lie 
jiarticuhir  malice  of  individuals.'  1  Wliart.  ( 'r.  Law,  >;  ']'.^~. 
And  ibis  is  the  general  doctrine  on  the  subject.  Siiiilh  r.  Sliil.\ 
r)2  Aht.  107;  Junhin  v.  Side,  70  Ala.  0;  WUluims  v.  Slflc  ^1 
Ala.  1  (1  South.  170,  00  Am.  Ifep.  l.*^:});  Amo.s  v.  Shilr.  s:; 
Ala.  1  (.')  South.  740,  3  Am.  St.  Kcp.  082);  1  IJish.  \ew  Cr. 
Law,  S  S40." 

Tn  (lihson  r.  State,  80  Ala.  121  (8  South.  OS,  18  Am.  St. 
Ke]i.  100),  an  indictment  for  murder,  the  law  was  thus  state! 
by  Judge  Somerville:  ''There  was  evidence  tending  to  shuw 
a  conspiracy  on  the  part  of  the  defendants  to  attack  the  de- 
ceased,— circumstances  from  which  llie  jury  were  authoriz(^d  tn 
infer  a  counnon  design,  at  least,  to  assault  and  beat  hiin.     Ea^^-h 


Tin 


POWERS  V.  COMMONWEALTH. 


483 


would  therefore  be  criminally  responsible  for  the  acts  of  the 
(itlier  in  i)roseeution  of  the  design  for  which  they  combined,  i.  e. 
f(ir  (vcrythin,!?  done  by  the  confederates  which  follows  inci- 
(It'iitiilly  in  the  execntion  of  the  common  design,  as  one  of  its 
pi'dliulile  and  nalnnil  conseipienees,  even  though  it  was  not  in- 
tciitli'd  as  a  part  of  the  original  design  or  connnon  plan.  The 
law  on  this  subjtet  is  ful'.y  discussed  in  Williams  v.  State,  81 
Alii.  1  ( I  South.  179,  fiO  Am.  Rep.  133),  and  in  Martin  v.  State, 
81)  Ala.  115  (8  South.  23)." 

In  Krans  v.  State,  lOi)  Ahu  22,  10  South.  535,  there  seems  to 
have  Ik  en  some  evidence  from  which  the  jury  might  lu've  in- 
ferred a  combination  to  do  an  unlawful  act,  and  the  court  said: 
"ir  several  consjjire  to  do  an  unlawful  act,  and  death  happens 
ill  tie  prosecution  of  the  common  object,  they  are  all  alike  guilty 
of  llh'  hnmicide.  Kacb  is  responsible  for  everything  done,  which 
fdljnws  incidentally  in  the  execution  of  the  common  purpose, 
i\^  (iiie  of  its  proirable  and  natural  consequences,  even  though  it 
was  ndt  intended,  or  within  the  reasonable  contemplation  of  the 
liarties,  as  a  i)art  of  the  original  design.  Williams  v.  State, 
M  Ala.  1  (1  South.  ITJ));  Gibson  v.  Slate,  89  Ala.  122  (8 
South.  98) ;  Martin  v.  State,  89  Ala.  115  (8  South.  23) ;  Tan- 
/„/•  ;•.  State,  92  Ala.  1  (9  South.  013) ;  Jolly  v.  State,  94  Ala. 
Ill  (10  South.  600).  The  thirtieth  charge  was  a  proper  one, 
and  should  have  been  given."  The  thirtieth  charge  referred  to 
was  as  follows:  "(30)  The  court  charges  the  jury  that  if  they 
believe  from  the  evidence  that  Boman,  Crawford,  and  Evans 
went  to  the  house  of  Alice  Palmer  on  the  night  the  killing  is 
said  to  have  been  done,  and  an  offense  was  committed  by  one 
of  them  from  causes  having  no  connection  with  the  common  ob- 
ject for  which  they  went  there,  the  responsibility  for  sucli  off(>nse 
rests  solely  on  the  actual  perpetrator  of  the  crime,  and  the  jury 
caMiidt  find  the  defendant  guilty  simply  Wause  he  happened 
t(»  he  ])re«cnt  at  the  time  the  offense  was  committed." 

Boirers  v.  Slate,  24  Tex.  App.  548  (7  S.  W.  247)  (5  Am.  St. 
Rep.  901),  was  a  caee  of  mayhem,  the  maiming  being  done  in 
tlie  course  of  the  exevution  of  a  conspiracy  to  whip.  Said  the 
court :  "lT]x>n  the  subject  of  the  responsibility  of  a  conspira- 
tor for  the  acts  of  his  co-conspirators,  the  rule,  as  we 
deduct  from  the  authorities,  is  that  each  conspirator  is 
respousible  for  everything  done  by  his  cemfederates  Avhicb 
i'olloAvs  incidentally  in  the  execution  of  the  common  design, 


1 1- 


"Si     .: 


Miitpy 


n 


li     '    i. 


484 


AMERICAN  CRIMIXAL  REPORTS. 


as  one  of  its  prol)al)lo  and  .natural  coiisoqiu nccfi,  rvoii 
though  it  was  not  intended  as  a  j>ai't  of  llio  ori<:,inal  dcsii-n  ,,t 
coniniou  plan.  In  other  words,  the  act  must  ha  the  onlinnrv 
ami  ])rohal)le  eil'eot  (d'  the  wrun^t'ul  aet  speeilleallv  a,ij;ree(|  nn, 
so  that  the  eonnec'tiiMi  hetween  thein  iiiav  he  reasonahly  a])|)areiit, 
and  n'  t  a  i'resh  and  in(h'pendent  prndnet  u\'  (he  ndnd  of  nnc  (,f 
the  confederates  oiit<ide  id',  or  foreifiH  to,  the  common  <lesiiiM. 
1  WlKirt.  Cr.  Linv  (S>th  Ed.)  J?^  2\\--J-2i\  ;:i»7;  1  liish.  Cr.  L;iw 
(7th  Kd.)  iiS  <)!(»,  cn  ;  Lnmh  r.  /'foy-Zr,  !»('.  111.  7.'{;  Riilofi'  r. 
People,  45  X.  V.  21;};  Tlioiiipsoii  r.  ^Inle,  2.")  Ala.  41  ;  Fntnk 
L\  Slnie,  27  Ala.  .'57;  WUllams  v.  Slnle,  S.'J  Ahi.  Kl  (8  Sou.h. 
01(5)  ;  Klrlnj  r.  Slate.  2:5  Tex.  App.  i;5  (."J  S.  W.  Ul")).  .  .  . 
In  the  recent  and  ecdehrated  e;ise  of  Spies  v.  People,  122  III.  I 
(12  X.  E.  .S(;r>)  (17  X.  K.  SliS)  (:j  Am.  St.  Kep.  320),  tlio 
court  said:  'Whether  or  not  the  act  done  l>_y  a  mendn'r  of  ii  con- 
sjiiracv  naturally  llow(?d  from,  and  was  done  in  furtherance  of, 
the  common  desijjjn,  are  questions  of  fact  for  the  jury.'  We  ai'c 
of  the  opinion  that  the  court  erred  in  not  suhmittinj^  the  (pic-- 
tion  ahdve  stated  to  the  jurv,  accompanied  hy  j)ro])er  instruc- 
tions explaining  the  rules  of  the  law  hereinlxd'ore  announced." 

Com.  V.  Camphell,  7  Allen,  541  CS8  Am.  l)e,  7»)5),  wa-^  iui 
indictment  for  murder,  the  homicide  occurrin/x  duriuj^-  a  riot 
growing  out  of  the  enforcement  of  a  draft  of  men  for  the  army. 
An  instrtiction  was  jiaked  that,  whether  the  deceased  was  killed 
hy  a  shot  from  within  or  without  the  armory,  all  the  parties  un- 
lawfully engaged  in  the  homicide  were  at  common  law  guilly, 
at  least,  of  manslaughter.  It  was  said  hy  I>ig(do\y,  ('.  ,!.: 
"There  can  l)e  no  doubt  of  the  general  rule  of  law,  that  a  per- 
son engaged  in  the  connnission  of  an  unlawful  act  is  legally 
res|X)nsil)le  for  all  the  conseipiences  which  may  naturally  or  nec- 
essarily flow  from  it,  and  that,  if  he  combines  and  confederates 
with  others  to  accomplish  an  illegal  ])iii'pose,  he  is  liable,  rrlin- 
iualiter,  for  tlie  acts  of  each  and  all  who  partieij)ate  with  him  in 
the  execution  of  the  unlawful  design.  .  .  .  These  citations, 
to  Ayhicli  many  othei's  of  a  similar  tenor  might  be  added,  show 
that  the  rule  of  criminal  responsibility  for  the  acts  of  others 
is  subject  to  the  reasonable  limitation  that  the  partictdar  act 
of  one  of  a  party,  for  which  his  asso<!iates  and  confederates  are 
to  be  held  liable,  must  Ik?  shown  to  haye  been  done  for  the  fur- 
therance or  in  prosecution  of  the  common  object  and  design  for 
which  they  combine  together.    Witliout  such  limitation,  a  per- 


POWERS  V.  COMMONWEALTH. 


485 


son  iiilglit  be  hold  responsible  for  acts  wbich  were  not  tbo  nat- 
iiriil  or  necessary  couHeciuences  of  tbe  eutcrpriHe  or  iindcrtiikiuf; 
ill  which  he  was  cnf-a^aul,  and  wliicli  he  conld  not,  either  in  fact 
or  ill  law,  1k'  (h'ciiicd  Id  have  coiiteiiiphited  or  intendeil.  Xo 
p(  rsdii  can  bo  b(dd  guilty  of  boiiucide  uidcss  tlie  act  is  either 
acliialiy  or  const nictividy  his,  aiid  it  caiin<tt  be  bis  act,  in  either 
sense,  unless  committed  by  his  own  hand,  or  by  some  one  actinii' 
in  concert  with  liini,  or  in  furtherance  of  a  common  object  or 
purpose.  .  .  .  'i  he  real  distinction  is  between  acts  which  a 
uiaii  tloes  either  actually  or  constructively,  by  liimself  or  his 
iificuts  or  confederates,  and  those  which  were  done  by  others 
acting;,  not  in  concert  with  liim  or  to  etl'ect  a  common  ol)ject, 
but  without  his  knowl(  dp'  or  assent,  either  expressed  or  implied. 
For  the  fcunier,  the  law  liolds  him  strictly  responsible,  and  f(jr 
all  their  necessary  and  natural  consecpiences,  which  lie  is  rij;ht- 
fully  deemed  to  liave  contemj)lated  and  inteiide<l;  for  the  latter, 
he  is  not  liable,  because  they  are  not  (b)ne  by  himself,  or  by 
those  with  whom  he  associated,  and  no  (h  si;i>'n  to  commit  them,  or 
intent  to  brinj;'  about  the  results  which  How  from  them,  can  be 
reasonably  imjiuted  to  him." 

The  case  of  ^>/Vs  v.  People,  122  111.  1  (12  N.  E.  805,  17 
X.  K.  ^^*.*S,  3  Am.  St.  liep.  477),  which  is  the  celebrated  case 
of  the  (Miiciu^o  anarchists,  was  much  criticised  at  the  time  tho 
decision  was  rendered  as  extending  tho  doctrine  of  criminal 
responsibility  for  acts  of  co-conspirators  beyond  reasonable  lim- 
its. Much  of  this  criticism  seems  to  have  arisen  from  the  fact 
that,  in  the  opinion  of  the  court  of  last  resort,  those  instrnctions 
only  were  staled  and  discussed  of  which  complaint  was  made 
by  the  accused,  and  little,  if  any,  notice  taken  of  the  counter 
instructions  given  on  the  motion  of  the  defendants,  or  by  tho 
court  on  its  own  motion,  which  limited,  qualitied,  and  ex- 
plained the  instructions  asked  by  the  prosecution.  Under  the 
Illinois  j)ractlce,  it  seems  to  be  the  custom  to  give  instructions 
asked  by  the  prosecution,  and  to  give  counter  qualifying  or 
limiting  instructions  asked  by  the  defense,  and  for  the  court  to 
add  such  general  instructions  as  it  deems  necessary.  The  in- 
structions in  this  case  are  given  at  length  in  Sack.  Instruct. 
Juries  (2d  Ed.)  707  et  seq.,  and  an  examination  of  them  shows 
that,  with  respect  to  the  acts  shown  in  that  case,  they  fully  give 
the  limitation  which  we  think  should  have  been  either  given 
in  the  seventh  instruction  now  under  consideration,  or  embodied 


i 


iiii 


,1  ^ 


§:\ 


^'li 


!il 


48G 


AMERICAN  CRIMINAL  REPORTS. 


in  n  sopnrato  instruotion,  naiiiciv,  tliat  tliu  ■  m1   wiiv.  i^.t 

guilty  of  murder  uiihv.'t  the  killing  was  the  new.  _»  or  |>r(ili;ili|(. 
consecjuenco  of  tiio  aet  conspired  to  be  done.  Secniinjily  ni-lii;it- 
ed  by  a  desire  to  err,  if  at  all,  upon  tlic  safe  side  in  a  case  wliicli 
luid  excited  such  deep  ft'eling,  the  court  in  that  case  gave  in- 
structions that  if  a  reasonahle  (loid)t  was  raised  in  the  niiin!-; 
of  the  jury  "by  the  ingenuity  of  coiuiscd,  upon  any  hy|t(itli(  -is 
reasonably  consistent  with  the  evidence,  that  <loubt  is  decisive 
in  favor  of  the  prisoner's  acquittaT';  that  a  verdict  of  not  guiliv 
meant  only  that  the  guilt  had  "not  Ihcu  demonstrated  in  tlic 
precise,  specific,  and  narrow  forms  prescribed  by  law";  ih.it 
they  were  not  to  convict  upon  mere  suspicion;  that  the  IiiiimIch 
was  on  the  prosecution,  and  that  the  presnmjttion  of  innocence 
was  not  a  mere  form.  In  instruction  ;»<>  the  jury  were  toM: 
"It  will  not  do  to  guess  away  the  lives  or  libera  '  the  iJeople, 
nor  is  it  proper  that  tiie  jury  should  guess  that  )ersfin  who 

threw  the  bomb  which  killed  Degan  was  instigated  to  do  ili(> 
net  by  tho  i)rocurement  of  the  (hd'endants,  or  any  of  tlicni. 
That  fact  must  be  (stablishe(l  beyond  all  reasonable  doubt  in 
th(^  minds  of  the  jury,  and  it  will  not  do  to  say  lluit,  becinisc 
th(f  defendants  nniy  have  advised  violence,  therefore,  when  vio- 
lence came,  it  was  the  result  of  such  advice.  There  nuist  bo 
a  dirtH't  connection  established,  by  credible  testimony,  betwi en 
the  advice  and  the  consummation  of  the  crime,  to  the  satisfnc- 
tion  of  the  jurv  bevond  a  reasonable  doubt."  And  in  instriic- 
tion  til  it  was  said:  "Therefore  the  jury  must  be  satisli^d, 
beyond  all  reasonable  doubt,  that  the  jierson  throwing  said  bdnib 
was  acting  as  the  result  of  the  teaching  or  encouragement  ^>\'  lli(> 
defendants,  or  sinne  of  them,  before  the  defendants  can  be  held 
liable  therefor,  and  this  you  must  find  from  the  evidence."  Sev- 
eral other  instructions  were  given  ui)on  this  line,  notably  in- 
structions 35  and  30. 

There  seems  to  l)e  no  material  or  sid)stantial  difference  of 
opinion  among  the  members  of  this  court  as  to  the  propriety  oi' 
such  a  limitation  as  wo  have  indicated.  The  difference  is  upon 
the  'question  whether  tho  failure  to  give  to  the  jury  such  a  lim- 
itation of  the  doctrine  was  prejudicial  error.  To  consider  this 
question,  we  must  refer  to  tlu'  contentions  on  behalf  of  the  Coni- 
monwealth  and  the  accused,  as  shown  by  the  evidence.  On 
behalf  of  the  Commonwealth,  the  evidence  was  directed  to  show- 
ing that  there  existed  a  bloody-minded  conspiracy,  having  for 


■^ 


POWERS  V.  COMMONWEALTH. 


487 


1   Wii.-;   IP  if 

'"•  pl'nlialilc 
'^il.v  iiclii.ii. 

••ilS)'  \v|ii|.|| 
•'^<'  pivc  ili- 

•llC    IllilKJs 

liypotlic^is 

i-i  <l('('i>iv(. 

not  ^iiiliv 

'<■'!   ill  the 

i"\v";  ili;ir 

Ik'  Itiinlcii 

iiilKicciicr 

Wert'  ((.1,1: 

IIh'  people, 

•orsoii  who 

to  do  tlin 

of    fllCIII. 

'  (l<iiil)f  in 

t,     iH'CilllSO 

when  vid- 
b  uuist  I)|. 
^  l)('(\v(  111 
0  siUisrnc- 
n  iiisfnic- 

snfisfi'Mi, 
■iiiid  lii/iiil) 

Hit  of  tl|(> 

n  lie  licid 
>tablj  in- 

fTOMPO  of 
prioty  of 
0  is  iipdii 
p1i  a  lini- 
lidfT  this 

tllC  ('(lill- 

ico.  Oil 
to  sliow- 
ving  for 


its  olijcct  tlie  killiii.y-  of  various  inotnbcrs  of  the  Lf',i;isl'iturc, 
and  ispicially  the  killing  of  (loohcd;  thai  llif  at^ciiscd,  wlic  held 
11  ccrtilicatc  »d'  cki'tiou  as  Secretary  of  State,  and  wlmse  otlico 
\v!i-i  in  contest,  wai-i  a  ])nrty  to  this  conspiracy,  with  full  knowl- 
(mIi'c  of  its  atrocious  ohjcct,  and  in  piirsiuuice  and  furtherance 
thereof  was  instninieiital  in  l)rinjiin;.v  armed  men  to  the  State 
Capital  to  assist  in  its  execution.  On  the  other  hand,  the  evi- 
dciicc^  for  the  defense  was  directed  to  cstahlishinjf  tlio  fact  that 
the  nun  who  were  hrou/iht  to  Frankfort  wore  hroufiht  for  the 
purpose  of  ])eac(  fully  ass(  nd)lin<;'  to  petition  the  Legislature,  in 
the  exercise  of  the  privile-^cs  giuiranteed  to  them  as  citizens  in 
the  hill  of  rights,  and  that  such  of  tin  m  as  Iwire  arms  hore  them 
openly,  and  solely  for  the  ])urpose  of  self-protection.  Metwccu 
these  two  extremes  of  ohjeet  in  the  proof  there  was  room  fur 
many  varietic  s  of  ])uri)(!se  which  niijiht  Ik;  ascrihed  to  tin  as-  . 
seiulilage,  and  there  was  sniiie  evidence  to  sujjport  almost  any 
of  the  theories  whicli  might  thus  bo  constructed.  Then^  was 
evidence  to  support  the  ilicory  iliat.  the  asscnd)lagc  "was  for  the 
purpose  of  impressing  the  minds  of  the  members  of  the  Lcgia- 
latiiro  by  the  I'liysical  presc  nee  of  a  large  nund)or  of  men.  This 
might  be  regarded  as  a  s])ecies  of  intimidation,  and  need  not 
imply  the  intent  to  do  actual  violence.  And  this  view  was  sub- 
iiiitted  by  th(!  ecMirt  to  the  jury,  though  without  the  necessary 
limitation  as  to  its  (  il'ect ;  for  by  the  amendment  the  jury  were 
instructed  that  the  pur])ose  was  unlawful  if  it  was  ''to  alarm, 
to  excite  t(!rror,  or  the  inlliction  oi  bodily  harm."  There  was 
undoubledly  evidence  to  support  the  theory  that  there  was  a 
eoud)iiiation  ;  that  the  purjvise  of  the  assemblage  was  to  alarm, 
and  to  do  nothing  else.  Wli(?ther  that  evidence  was  to  b(>  be- 
lieved or  not  was  a  question  solely  for  the  jury,  nuder  jiropcr 
instructions.  The  accused  had  the  right  to  have  the  jury  j)ass 
upon  the  (piostion  whether  that  )vas  the  solo  object  of  the  as-cni- 
blage,  and  u|»on  the  further  (pi'.stion  whether  the  killing  of 
(loebel  n(>cessarily  or  pnibably  would  result  from  such  an  a-scni- 
blage.  Jt  will  not  do  to  say  that  because  the  judges  would 
have  disregarded  such  evidence  had  they  boon  jurors  at  the  trial 
it  is  not  prejudicial,  for  the  jurors  are  the  sole  jitdges  of  the 
w(  ight  (tf  the  evidence,  and  to  hold  otherwise  wcuhl  be  for  the 
court  to  assume  t(»  perform  those  functions  which  from  time 
innnomorial  have  been  regarded  as  within  the  sacred  province 
of  the  jury. 


Mi 


lift 


m 


\} 


i: : 


'I  ■  111 

4  1 


k    t  *  ! 


[:ilj 


I:    i  !; 


■; 


;"'i\ 


,   I  i 


i    i 


' 


;l 


r 


i 


i 


488 


AMERICAN  CRIMINAL  REPORTS. 


It  was  said  by  Judge  Lewis  in  Boivlin  v.  Com.,  04  Ky.  oDS 
(ir>  Ky.  L.  11.  149,  22  S.  W.  543):  'In  fact;  it  is  nd  the 
province  of  tlie  lower  court,  any  more  than  of  this,  to  weii>h  evi- 
dence for  the  purpose  of  determining  whether  a  jjcrson  nn  trinl 
for  his  life  is  entitU'd  to  an  instruction  as  to  manslauuhrer. 
But,  if  there  is  any  evidence  tending  to  show  the  homicide  i.s  of 
the  degree  of  manslaughter,  the  accused  is  entitled  to  an  in- 
struction u])on  that  hypothesis."  See,  also,  Bush  v.  Com.,  ~s 
Ky.  200;  Buckncr  v.  Com.,  14  Bush.  GOD;  Brown  v.  Com.,  Id. 
39({. 

In  Gibson  v.  Slaie,  89  Ala.  121  (S  South.  OS,  IS  Am.  St. 
Bep.  101),  it  was  said:  ''The  testimony  of  the  defendants 
themselves  tended  to  sui)port  every  phase  of  the  instructinii 
requestt'd.  It  nuittered  not  that  this  testimony  may  have  sprung 
from  parties  deeply  interested,  and  have  been  Cfintradictcd  liy 
many  disinterested  witnesses,  so  as  to  he  entitled  to  hut  little 
weight  in  the  estinuitiim  of  the  trial  judge.  It  was  fdv  the 
jury,  and  not  the  court,  to  pass  on  the  credibility  of  the  wit- 
nofses  and  the  sutliciency  of  the  evidence.  Every  prisoner  at 
the  bar  is  entitled  to  have  charges  given  which,  without  being 
misleading,  correctly  state  the  law  of  his  case,  ami  are  supjidrted 
by  any  evidence,  however  weak,  insulHcient,  or  doubtl'nl  in 
en  (lil)ility.  The  charge  under  consideration  was  a  cctrreet  euiui- 
ciatiou  of  the  law,  and,  being  sui)ported  by  the  evidence,  its 
refusal  nmst  operate  to  reverse  the  judgment  of  conviction. 
^rcDanie^  V.  Stale.  TC  Ala.  1."       - 

We  are  clearly  of  opinimi  that  the  instruction  as  given  was 
not  i>nly  erroneous,  but  highly  ])r('ju<ii('ial.  This  instructidu 
shouKi  be  qualitied  by  re(|Hiring  the  jury  to  believe  that  tlie 
nuirder  was  conunitted  in  iui-lherance  of  the  consi)iracy,  and 
was  ih(>  necessary  or  probable  n  suit  of  the  execution  of  the 
conspiracy. 

The  eighth  instruction  is  as  follows:  "The  jury  cannot  con- 
vict the  defendant  upon  the  testimony  of  an  accomplice  uide.-> 
such  testimony  be  corroborated  by  other  evidence  lendin"  tn 
conned  the  defendant  with  the  eonunission  of  the  oifeiise,  and 
the  corroboration  is  not  suthcient  if  it  mendy  shows  that  the 
otF(  n-e  was  comnutted  and  the  cinMUUstances  therecd'."  It  i> 
objected  to  this  instruction  that  it  jiermits  the  jury  tn  Hud  guilt 
from  the  unsupjtorted  testimony  of  more  th;in  <ine  aceninpliee, 
and  instruction  Xo.  2  was  aske<l  hv  the  defeui-e  in  these  word.-: 


POWERS  V.  COMMONWEALTH. 


489 


"The  evidence  of  an  accomplice  in  this  case  is  not  sufficient 
to  convict  unless  the  same  is  corroborated  by  other  evidence 
tending  to  show  the  cotrnnission  of  the  offense,  and  connecting 
the  defendant  therewith,  and  the  evidence  of  one  accomplice  or 
co-conspirator  d<x's  not  and  cannot  corrolx>rate  another  accom- 
plice or  co-consj)irator."     The  instruction  asked  and  refused 
nia,y  not  be  strictly  accurate  in  form,  for  it  may  be  said  that 
while  one  accomplice  by  his  testimony  does,  or  at  least  may, 
corroborate  anotlier,  nevertheless  the  idea  is  acci;rate  that  they 
do  not  corroborate;  each  other  for  the  purpose  of  conviction,  in 
the  absence  of  other  testimony.     The  jury  should  have  been 
told  that  they  could  not  convict  the  defendant  upon  the  testi- 
mony of  an  accomplice  or  accomplices,  unless  such  testimony 
be  corrolK)rated  by  <jther  evidence  tending  to  connect  the  de- 
fendant with  the  connnission  of  the  offense,  and  the  corrobora- 
tinn  is  not  sufficient  if  it  merely  shows  that  the  otlensc  was  com- 
niitti'd  and  the  circmnstances  thereof.     In  2  Kolxn-son,  Ky.  Cr. 
Lav,  J).  1()7(>,  it  is  said:     "If  two  or  more  accomplices  are  pro- 
duced as  witlK^ss('s.   ilicy  are  not  (leenu>d  to  corroboriite  each 
other."     In  U.  S.  v.  Logan  (C.  C),  45  Fed.  ST2,  it  M-as  held 
that  a  conviction  for  a  conspiracy  cannot  be  had  on  the  uncor- 
roborated ttstimony  of  a  co-conspirator,  nor  can  conspirators  cor- 
roborate each  other.     See,  also,  1  (Jreenl.  Ev.  §  .']S1,  and  Smith 
v.  Cum.  (  Ky.  j,  ITS.  W.  182.     This  doctrine  is  distinctly  recog- 
nized in  Blackburn  v.  Com.,  12  J3ush,  181.     It  is  agreed  that 
this  was  erroneous,  but  there  is  variance  of  opinion  as  to  whether 
it    was    [)rejudieial.     Tnless    we    can    assume    to    invade   the 
province  of  tlie  jury,  and  weigh  the  evidence,  this  instruction 
was  necessarily  prejudicial,  or,  at  least,  may  have  been  so.     The 
most  material  testimony   upon   the  question  whether  the  con- 
spiracy was  to  murder  was  that  of  confessed  accomplices,  and 
it'  till'  jury,  in  tlu;  exi'rcisc  of  tlu  ir  prerogative,  disbelieved  the 
other  evidence  upon  this  (piestittn,  they  might  have  reached  a 
ditlerent  conclusion  had  they  k'eii  told  that  they  could  not  con- 
vict upon  till!  uncorrobc (rated  U'stimony  of  accomplices.     Our 
views  ui)(»n  this  (picstion  an;  sutliciently  stated  in  considering 
the  prejudicial  character  of  the  s(>venth  instruction. 

For  the  reasons  given,  the  judgment  is  reversed,  and  cause 
remiinded,  with  <lirections  to  award  appellant  a  new  trial,  and 


for  further  j)roc(>cdiugs  consis 


stent  1 


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tb 


WuiTK,  J.  (dissenting).     Not  agreeing  with  the  views  of  the 


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490 


AMERICAN  CRIMINAL  REPORTS. 


I    :-l 


majority  of  the  court  on  ^1  the  questions  presented,  we  fcol  thrt 
the  importance  of  the  questions  justities  us  in  this  separate  aiul 
(lissenting  opinic/a.  Appellant,  Caleh  Powers,  was  indiohd  i  i 
the  Franklin  Circuit  ('curt  charged  with  the  crime  of  hcin;; 
accessory  l)efore  the  fact  to  the  willful  murder  of  Williiim 
Goebol.  On  change  of  venue,  the  prosecution  was  taken  \n 
Scott  C\iunty,  and  there  tried;  the  risult  being  conviction,  the 
punishment  l>oing  confinement  in  the  penit^  ntiary  ior  life,  An- 
pellant's  motion  for  new  trial  being  denied,  he  appeals. 

The  indictment  reads,  after  the  cajjtion:  "The  grand  jury 
of  the  County  of  Franklin,  in  ihe  name  and  by  the  autluirity 
of  the  Commonwealih  of  Kentucky,  accuse  Caleb  Powers  nt  the 
crime  of  being  accessory  Ixfore  the  fact  to  the  willful  uiiinK  r 
(f  William  (loebel,  conunittetl  as  follows,  viz.:  The  said  Caleb 
Powers,  in  the  said  County  of  FrankMu,  on  the  '5!)tli  day  of 
Janu:irv,  A.  I).  1!)()(>,  and  before  the  finding  of  this  indiitment, 
unlawfully,  willfully,  feloniously,  and  of  his  malii'(>  afore- 
thoujulit.  and  with  int(  lit  to  bring  about  the  death  and  ])rnciii'(' 
the  ]nui'.l(>r  of  William  (Jodnd,  <li<l  ci  nsjtire  with  W.  II.  CMtoii, 
F.  W.  (loldoM,  (Incn  Gilden,  .Ichn  L.  Powers,  ,lohn  Davis, 
Charl(\-;  Kinli'v,  W.  S.  Tayli>r,  Ilenrv  Voutsey,  dames  Howard, 
Perry  Howard,  Harlan  Whitaker,  Richard  Condis,  and  oiIk  r 
persons  to  this  grand  jury  unknown,  and  did  counsel,  advise, 
encourage,  aid,  aid  ])rncure  Henry  Youtsty,  James  Ifuwarl, 
Berry  Howard,  Harlan  Whitaker,  Richard  (\tnd)s,  and  others 
to  this  grand  jury  unknown,  uiilawful'y,  willfully,  feloniously, 
and  of  their  malice  -'iforet bought,  to  kill  and  nuirder  William 
Goebel,  which  one  of  the  five  above-named  persons,  or  am. tin  r 
])er8<in  acting  vith  tlu  m,  but  who  is  to  this  grand  jiii'v  un- 
known, s(»  as  aforesaid,  then  and  there,  thereunto  by  the  said 
Caleb  Powers  Ixd'ore  the  fact  counselecl,  advised,  encouraged, 
aided,  and  ])r  :cure<l,  did,  by  slmoting  and  wounding  the  said 
Goelnd,  with  a  gtui  or  jiistol  loaded  with  jxnvder  an<l  other  ex- 
plosives, and  leaden  and  st:'(d  bill  and  other  hard  sub-itances, 
and  from  which  said  shorting  and  wounding  the  said  (5o(bel 
died  on  the  '-id  day  of  February,  1  !>()(),  but  which  of  said  last 
above  mentioned  persons,  sr)  as  aforesaid,  actually  fired  the  sbcit 
that  kill<'d  the  said  Go<'1k1,  is  to  this  grand  jury  unknown; 
against  the  ])eaee  and  dignity  of  the  C^mimonwealth  of  K( n- 
tuckv.  Robt.  B.  Franklin,  Commonwealth's  Atty.,  14th  ('ir. 
Ct.  Dist." 


POWERS  V.  COMMONWEALTH. 


491 


Upon  arraignment,  appellant  filed  a  special  plea,  producing;  a 
paper  purporting  to  be  a  pardon  issued  by  W.  S.  Taylor,  Gov- 
ornf)r,  dated  March  10,  1900,  and  asked  to  Iw  discbarged  from 
custody.  Tbe  court  refused  to  discbarge  appellant,  tbereby  re-' 
fusing  to  recognize  tbe  jiaper  purporting  to  be  a  pardon  as  valid. 
Api)C'llant  tben  demurred  to  tbe  indictment,  wbicb  Avas  over- 
ruled by  tbe  court,  and  tbat  action  is  assigned  as  error.  Appel- 
lant, after  bis  special  plea  of  pardon  and  bis  demurrer  were  botb 
overruled,  pleaded  not  guilty,  and  trial  was  had,  with  tbe 
result  as  stated. 

Tbe  question  of  tbe  sufficiency  of  tbe  indictment,  going  to  tbe 
very  foundation  of  tbe  prosecution,  sbould  be  first  considered ; 
for,  if  tbe  objection  be  good,  tbe  otber  questions  are  not  neces- 
sary to  a  consideration  of  tbe  case.  Tbe  cbarge  laid  in  tbe  in- 
dictment is  tbat  ajipcllant  is  guilty  of  being  accessory  lieforc 
the  fact  to  the  willful  murder  of  William  Goebel.  The  accus- 
iiiir  part  is  tbat  appellant  did  conspire  with  Culton  and  dtbers 
named,  and  other  ])ersons  unknown,  and  did  counsel,  advise, 
encourage,  aid  and  i)rocure  Youtsey  and  others  named,  and 
others  to  the  grand  jury  unknown,  unlawfully,  willfully,  felon- 
iously, and  of  their  nnilice  afnretbouiibt  to  kill  and  nnirder 
William  Goebel,  with  the  further  cbarge  that  it  was  unknown 
what  person  actually  did  tbe  killing.  Tbe  indictment  tben 
says  these  acts  were  done,  "fo  as  aforesaid,  then  and  there 
thereunto  by  the  said  Caleb  Powers,  before  tbe  fact  counseled, 
advised,  encouraged,  aided,  and  procured,  did  by  shooting,"  etc., 
kill  William  Goelnd. 

Two  objections  are  presented  to  the  indictment  ami  urged  as 
fatal.  One  objection  is  that  it  is  not  charged  in'terms  that  the 
killing  was  <h)ne  in  ])ur.suance  to  and  in  furtherance  of  the  cou- 
sj)ira('y  charged  to  have  been  entered  into.  Th.e  other  objection 
is  tliat  the  ])rin('ipa!  (the  one  who  actually  fired  the  fatal  shot) 
is  not  named,  but  tbe  charge  is  tbat  Youtsey,  etc.,  or  another 
person  to  the  grand  jury  unknown,  did  the  killing.  The  court 
is  agreed  tbat  neither  of  these  objections  is  tenable,  and  is  agreed 
that  the  indit-tnient  is  siillicient.  While  the  indictment  does  not 
contain  the  words  usually  found,  "in  pursuance  to,  and  in  fur- 
therance of,  tbe  consj)iracy,"  yet  it  does  say  tbat  appellant, 
Powers,  did  counsel,  encourage,  aid,  and  procure  Youtsey,  etc.. 
willfully, folon'nusly,and  of  their  malice  aforethought, to  kill  and 
nuirder  William  Goebel,  and  then  charges,  ''so  as  aforesaid  tben 


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492 


AMERICAN  CRIMINAL  REPORTS. 


and  tlicrc  thereunto  by  the  said  Caleb  Powers,  before  the  fact, 
counseled,  adv^ised,  encouraged,  aided  and  ])rocured,  did,  by 
shooting,"  etc.,  kill  William  Goebel.  The  charge  is  direct  and 
certain  that  ai)])ellant  is  accused  of  coTinseling,  aiding,  encourag- 
ing, and  i)rocuring  Youtsey,  etc.,  to  coniniit  a  willful  niur(I(>r, 
and  ihat,  having  been  so  counseled,  advised,  aided,  and  ijrooiircd, 
they,  or  one  of  them,  did  commit  the  murder.  Instead  of  using 
the  words  so  often  used,  "in  pursuance  to,  and  in  furtheranto 
of,"  the  conspiracy,  the  indictment  charges  how  it  was  done, 
so  that  ap]K'lla)it  would  be  charged  as  accessory  before  the  fact 
if  he  counseled,  aided,  or  procui'ed  the  murder  to  be  done,  and 
the  conspiracy  charged  failed  in  the  priK)f ;  that  is,  as  to  tln" 
other  than  the  actual  principal. 

As  to  the  other  proposition,  that  the  principal  must  be  named 
before  tlie  accessory  before  the  fact  could  U'  convicted,  the  court 
is  agreed  that  this  point  is  likewise  without  nu-rit.  This  ])recise 
question  was  presented  in  the  ^«'e\v  York  Court  of  Appeals  in 
Fcopic  r.  Mather,  4  Wend.  22t»,  on  an  appeal  by  the  prosecu- 
tion. In  a  very  exhaustive  o])inioii,  reviewing  all  the  coiunioii- 
hnv  authorities,  the  court  held  the  indictment  good.  Again,  ir. 
the  ease  of  V.  S.  v.  liabcork,  ;J  Dill.  <523,  Fed.  Cas.  Xo.  l-i,bs7, 
the  court  held  such  an  indictment  valid.  In  U.  S.  v.  Goldbrry, 
7  Jjiss.  17r»,  Fed.  Cas.  JS'o.  l.'),22;{,  the  indictment  charged  a 
consjiiraev  with  certain  ininied  {)ersons,  "and  other  persons,"  the 
word  "unktuiwn"  being  omitted,  vet  the  court  held  the  indict- 
ment  good.  In  the  Anarchist  Cane  (Spies  v.  Peo/de)  122  ill. 
1  (12  X.  E.  (SOT),  17  X.  E.  898),  this  question  was  again  pre- 
sented, and,  after  an  exhaustive  review  of  all  authorities,  the 
court  concluded  the  indictment  was  valid.  This  last  case  went 
to  the  Supreme  Court  on  application  for  a  writ  (d'  habeas  corpus, 
and  I  he  indictnient  was  held  to  charge  a  crime,  and  writ  denied. 
These  cases  cjught  to  settle  the  <piestion  IniVond  controversy.  We 
are  all  agreed  that  the  indictment  is  sulHcient,  an<l  the  demurrer 
thereto  was  pro|>erIy  overruled. 

Counsel  for  apjiellant  sei'iously  and  ably  present  the  question 
that  the  pardon  issued  March  10,  1900,  by  W.  S,  Taylor  to 
apjK'llant,  is  valid  and  binding  on  the  State,  and  that  upon  its 
production  the  appellant  should  have  In'on  discharge«l.  The 
position  of  counsel  on  that  point  is  that  on  the  lOtli  day  of 
March,  lt)00,  W.  S.  Taylor  was  de  facto  Governor  of  the  State, 
and  so  continued  until  the  decisimi  of  the  Supreme  Court  of  the 


POWERS  V.  COMMONWEALTH. 


493 


Tnitod  States  rendered  May  21,  1900  {Taylor  v.  Bed-ham, 
20  Sup.  Ct.  890,  1009,  44  L.  Ed.  1187),  and  that  nntil  Tavlm- 
surrendered  the  office,  or  was  ousted  after  the  nnindate  of  the 
Suitivnie  Court  was  issued,  he  was  a  dc,  faclo  (jfficcr,  and  his  acts 
iii-e  liiridiug.  It  is  said  that  tlie  judiiiucnt  of  tlie  Circuit  Court 
and  of  this  Court  was  superseded,  and  tliat  as  a  conscHpience 
J.  C.  W.  Beekluun  ae(]uired  no  niorc  riglits  under  the  judunient 
in  lliat  case  than  hefore  it  was  rendered;  that  as  Taylor  liad 
hcon  awarded  the  certificate  of  eh'ction,  and  had  Wn  inaugu- 
rated as  Governor,  he  hekl  till  he  was  ousted  by  due  process  of 
jaw,  or  vacated.  It  is  also  suf>',<>-ostcd  that  the  court  will  take 
judicial  notice  of  the  official  public  acts,  as  well  as  the  sijiua- 
lurc  of  the  chief  executive;  that  the  court  must  judicially 
know  who  is  tlie  governor  at  any  given  time.  We  take  it  to 
be  well  settled  that  there  cannot  t)e  two  de  facto  officers  for  the 
same  office,  to  be  filled  by  only  one  person,  at  the  same  time.  If, 
on  ^Marcli  10,  1900,  Taylor  was  de  facto  Goveraor,  tjien  on  the 
same  day  IW'kbam  was  not,  and  rirc  rersa.  Cotxnsel  for  appel- 
lant cites  in  sui)port  of  his  [)osition  the  case  of  State  v.  Supreme 
Court,,  of  March  12th,  and  (piotes  as  follows:  "One  in  posses- 
sion of  an  office  by  virtue  of  a  certificate  of  electicm  issued  by 
the  ])roper  officer,  and  regular  on  its  face,  is  entitled  to  retain 
possession  and  perform  tlu;  duties  of  the  office,  without  inter- 
ference, until  such  certificate  is  set  aside  in  some  appro|)ri{(te 
procedure."  A  case  in  82  ^lich.  2'>r>,  40  X.  W.  381  (9  L.  R. 
A.  408)  (llall(jren  v.  Campbell),  is  also  cited,  where  the  court 
said:  "There  cotdd  not  b<>  two  incundn'nts  of  this  office."  The 
case  of  Hamlin  v.  Kafisafer,  15  Or.  450  (15  Pac.  778),  is  also 
cited.  The  court  there  said:  ''An  'office'  is  defined  to  be  a 
right  to  exercise  the  public  functions  and  emjiloyments,  and  to 
take  the  feCvS  and  emoluments,  Indonging  to  it,  and  Chief  Justice 
^Marshall  says:  'lie  Avho  {)erforms  the  duties  of  that  office  is  an 
officer.'  From  the  inherent  nature  of  an  office,  no  less  than  from 
reasons  of  public  policy,  there  cannot  be  two  persons  in  posses- 
sion of  it  at  the  same  tinfe."  The  definition  of  Lord  Ellen- 
borough  in  Rex  v.  Bedford  Level  Corp.,  G  East,  308,  is  cited  by 
counsel  to  support  the  contention  that  Taylor  w'as  de  facto  Gov- 
ernor, 3ilarch  10,  1900.  This  definition  is:  "An  'officer  de 
faclo'  is  one  who  has  the  reputation  of  being  the  officer  he 
assunu^s  to  lie,  and  yet  is  not  a  good  officer  in  point  of  law."  The 
definition  of  Judge  Cooley,  in  his  work  on  Constitutional  Lim- 


'\< 


.n  i 


Ji 


nu 


itil 


nr- 


494 


AMERICAN  CRIMINAL  REPORTS. 


itations,  is  also  cited.  It  reads:  "An  'officer  de  facta'  is  ono 
who,  by  color  of  right,  is  in  possession  of  an  office,  and  for  the 
time  Ix'ing  })('rfornis  its  dntios,  with  public  accpiiescoiK'e  tlioiii;h 
haviiij;  no  right  in  fact."  There  are  many  other  citations  to  the 
same  effect. 

We  do  not  propose  to  take  issue  with  any  of  the  authorities 
cited,  for  they  seem  to  us  to  state  the  law  clearly  and  correctly. 
The  (luestiim  is  in  the  application.    The  court  judicially  knows 
that  on  the  1st  day  of  January,  1900,  the  general  assembly,  in 
piirsuance  to  the  power  given  it  under  our  Constitution,  dccidiil 
the  contest  over  the  office  of  Governor  in  favor  of  the  conhstant, 
William  Gocbel.     The  ctmrt  knows  judicially  that  on  that  day 
William  Goebtd  was  inaugurated  as  Governor;  that  he  after- 
wards died,  and  J.  C.  W.   Beckham  became,  by  virtue  of  tlio 
law,  he  being  Lieutenant  Governor,  the  acting  Governor  frnni 
the  3d  day  of  February,  1900.     The  court  further  knows  that 
it  was  decided  by  this  court,  and  its  decision  was  sustaiiiocl  by 
the  Supreme  Court  of  the  United  States,  that  the  c<nirts  bud 
no  jurisdiction  in  the  matter;    that  the  decision  of  the  contest 
before  the  general  assembly  was  final  and  conclusive,  from  which 
there  was  no  appeal.     While  W.  S.  Taylor  executed  a  super- 
sedeas Ixjud  to  supersede  the  judgment  of  the  Circuit  Court  and 
of  this  court,  he  did  not  and  could  not  supersede  the  jiulgment 
and  decision  of  the  general  assembly  on   the  question   as   to 
whether  he  or  William  Goekd  had  been  legallv  and  dulv  elected 
Governor  in  Novend)er,  1S99.     The  appropriate  procedure  \my- 
vided  by  law  to  set  aside  the  certificate  <»f  election  issued  to 
W.  S.  Taylor  is  a  contest  before  the  general  assend)ly,  and  when 
the  contest  was  decided  by  that  body,  and  the  successful  i)arty 
took  the  recpiired  oaths,  he  became  the  Gttvernor.     There  is  no 
writ  provided,  nor  is  one  re(piired,  to  indiu't  a  sjiccessful  con- 
testant into  office,  or  remove  an  unsuccessful  one  from  olfice. 
The  judgment  of  a  motion  in  the  contest  proceeding  is  self- 
executing.     This  judgment  was  not  ap[)ealable,  and   therefore 
c<mld  not  be  suspended,  arrested,  or  superseded.     Even  if  the 
decision  of  contest  had  been  ai)pealable  to  any  tribunal,  it  is  well 
settled  by  authority  that  a  supersedeas  or  writ  of  error  will  not 
prevent  the  successful  i)arty  in  the  contest  from  assuming  the 
duties  of  the  office.    State  v.  WooiLson.  128  Mo.  497    (:51  S.  W. 
lOo) ;  Feupte  v.  Stephenson,  98  Mich.  218    (57  N.  W.  115) ; 


POWERS  V.  COMMONWEALTH. 


495 


the 


Jdljne  V.  Drorhaugh,  03  Iowa,  711    (7  X.  W.  4fi3) ;  Slate  v. 
Chase,  41  Iiul.  3.j(!  ;  Elliott,  App.  Proc.  §  392,  and  case  cited. 

Stress  is  laid  by  the  adjudicated  cases  on  the  color  of  right 
or  title  to  the  oflice,  and  not  on  the  claim.  In  the  ca?e  of 
Williams  V.  Boynton,  147  X.  Y.  42G  (42  X.  E.  184),  the  court 
of  ai)peal8  said  of  the  rule  as  to  do  facto  officers:  "It  applies 
for  the  protection  of  third  persons,  or  the  public  who  have 
juMpiircd  rights  upon  the  faith  of  an  appearance  of  authority.  It 
d(;(S  not  apply  where  the  official  action  is  challenged  at  the  out- 
set, and  before  any  person  has  been  or  can  be  misled  by  it.  .  .  . 
His  ciilor  of  title  was  wholly  destroyed  by  a  public  judicial  deci- 
sion, and  he  became  a  mere  usurper  and  intruder,  whoso  act  was 
cliiilleiiged  at  tlu!  moment  it  was  done."  In  the  case  of  Oliver 
V.  City  of  Jersey  City  (from  X.  .1.  Court  of  Errors  and  Ap- 
peals) 44  Atl.  7()i),  cited  by  appellant  as  4S  L  11.  A.  412,  the 
ciMU't,  speaking  of  the  acts  of  a  de  facta  otlicer,  said:  "But  this 
legal  i)rotection  is  not  alTorded  where  the  defects  in  the  title  to 
tlic  otliee  are  notorious,  and  such  as  to  make  tluise  relying  on  his 
acts  chargeable  with  such  knowledge.  What,  then,  luay  be  con- 
sidered notice  sutlicicnt  to  warn  third  persons  and  the  ])ublici 
The  expiration  of  the  term  of  an  officer,  and  the  ajjpdintment 
or  election  and  cpialitication  of  his  successor,  the  resignation  of  a 
public  officer,  the  abolislnnent  of  the  office  itself  by  the  act  of 
the  Legislature,  the  refusal  of  the  board  and  legislative  body  of 
wliicli  the  officer  is  a  mend)er  to  recognize  him,  and  the  judgment 
of  a  court  against  the*  title  of  the  office,  ari'  such  facts  as  third 
persons  and  the  public  are,  as  a  general  rule,  required  to  take 
notice  (.if.'' 

The  decision  of  the  contest  by  the  general  assenddy  was  a 
judgment  of  the  only  court  constituted  by  law  to  determine  a 
contest  over  the  office  of  Governor,  and  of  that  decision  tho 
apju'lhint  is  presumed  to  have  had  actual  notice,  and  the  public 
generally  must  take  notice.  The  color  of  title  that  Taylor  had 
by  reason  of  the  c(U'tilicate  of  election  and  his  inauguration  was 
wholly  destroyed  by  the  judgment  of  the  general  assembly  when 
the  contest  was  decided  against  him,  and  thereafter,  in  the 
language  of  the  Court  of  Ai)peals  of  Xew  York,  "he  became  a 
mere  usurper  and  intruder,  whose  act  was  challenged  at  the 
moment  it  was  done."  The  Supreme  Court  of  Rhode  Island, 
in  the  case  of  Murphy  v.  Moies,  25  Atl.  977,  said:  "Thus,  it 
appears  that  reputation  and  acquiescence  are  controlling  ele- 


■X 


;J 


i^ 


fi; 


496 


AMERICAN  CRIMINAL  REPORTS. 


inonts  ill  (Iclcviiiininp;  the  validity  of  offieinl  act?,  ns  tIinH(>  of  ;m 


1 1 


>m 


oiTiccr  r 


Ic  I'd  eh 


Tested  l)v  this  ride,  it  is  clear  that  Tavl 


nr 


t'K- 


nets  (111  tlic  lotli  day  (if  ^larch,  ]5)()(),  were  not  those  of  a  */( 
facto  ollicer.  His  acts  were  not  aceeiJtcd  by  th(!  hiwiiiakiiiii 
branch  <■{'  the  (Idvernnient.  Prior  to  that  (hiy,  and  on  that  il.iv, 
the  Senate  had  repeatedly  ratified  and  c(»ntirnie(l  the  apiMiim 
nient  of  vari<iiis  and  sundry  olHcers  appointed  by  (Jovernor  IJi 
ham,  and  hotli  branches  of  tlie  Lejiislature  had  recognized  ImcU- 
ham  as  (Jovenior  In-  ])res('ntin<?  bills  for  his  apjiroval  and  si^nii- 
tnre,  and  lie  had  in  fact  ai)|ir(»ve(l  three  of  such.  Tliere  was  hd 
nccpiiesceiice  ill  the  acts  of  Taylor  on  the  lOth  (hiy  of  iManli, 
llMK).  The  rule  tliat  acts  of  a  dc  facto  ollicer  are  biiidiin''  on  the 
pnblie  and  third  jM-rsons  cannot  apply  where  the  defects  in  the 
title  of  the  assuiiied  ollicer  are  notorious,  and  the  jicrsoiis  d(>iillii;;' 
with  him  have  notice  of  the  facts.      Mechem,  i'nb.  Oil'.  .'Jl's, 


and  eases  ei 


ted. 


In  this  ea'^r,  the  appellant,  beinir  Secretary  of  Stat(>  when 
the  contest  w;is  decided  by  the  general  assembly,  nnist  he  ciin- 
clnsively  pn  sinned  to  have  bad  knowledf^c  of  the  defects  in  the 
titl(»  of  Taylor,  or  rather  that  he  thereafter  bad  no  title  to  the 
olHce.  \\\'  think  it  clear,  npoii  th(!  plainest  principles,  that 
where  a  person  has  knowledji'e  that  one  who  assnmes  to  he  a 
pnblic  ollicer  has.  In'  a  jndnnient  of  a  coniju'tent  tribunal,  be(  n 
n<ljud{ti<'d  not  to  have  title  to  the  olHce,  sneh  |)erson  cannot  elaiiii 
that  the  acts  of  such  intruder  and  usurper  are  those  of  a  dc  facto 
officer. 

Dnriny  ihe  prosjress  of  the  trial,  nniny  objwtions  to  the 
adniissieii  of  tesiimonv  and  manv  exceiitions  to  the  exclusion  of 
testimony  were  n\adc.  Likewise  objections  ami  exceptions  to 
instructions  niven  and  refused  appear  in  the  recor<l,  and,  in 
order  to  an  intellifient  uinlerstandinj?  of  the  case  and  the  parts 
we  ])ro])ose  to  discuss  here,  Ave  deem  a  short  statement  of  the 
.material  facts  the  evidence  tends  to  ])rove  to  Ix'  necessary. 

These  facts  are  that  William  (joelK'l  was  a  member  of  the 
Senate,  and  v;as  also  a  contestant  for  the  oliice  of  Governor 
against  W.  S.  Taylor,  coutestee,  the  case  being  heard  before  a 
joint  conmiittce,  as  provided  by  law.  On  the  morning  of  Janu- 
ary 30,  l!)t)(>,  after  all  the  testimony  in  the  cont<\st  case  ha<l 
been  heard,  while  on  his  way  to  the  session  of  the  Senate,  and 
just  in  front  of  the  State  house,  the  contestant,  William  (joehel, 
was  ahot  down,  from  which  he  died  in  a  few  days  thertafter. 


POWERS  V.  COMMONWEALTH. 


497 


.'!■»> 


TIio  proof  fnrtlK'v  tciidod  to  show,  with  reas(iiiiil)io  olonrnoss,  that 
the  shot  WHS  tired  from  a  wiiMh)W  in  tho  priviitc  olHco  of  apfH-l- 
hint,  Caloh  Powers,  who  was  thcti  Swrctary  of  State.  (It  liad 
Iji'cii  agreed  tiiat  tho  testimony  heard  before  tlie  eoirnnittee  on 
contest  for  Clovernor  slio\d<l  he  he  ard  and  used  on  tho  trial  of 
the  eoiitest  f>ver  the  otHce  of  Seeretary  of  Slate  by  (].  15.  Hill 
against  appellant.)  At  the  time  of  the  shooting,  tin;  window 
was  raised  a  few  inches,  and  the  blinds  down.  On  that  morn- 
ing, ji'i^t  prior  to  the  shooting,  appellant  Powers,  together  with 
his  brother,  John  L.  Powers,  Walter  J)ay,  and  F.  W.  Golden, 
had  taken  the  train  for  liOiiisville.  It  is  shown  that  on  January 
lit,  r.'iHi,  the  militia  compatiy  of  Fra'  kfort  was  secretly  assem- 
bled, the  meudjers  out  of  town  were  brought  in,  and  board 
ciigiHged  for  them  in  the  city  near  tho  arsenal.  This  company 
was  stationed  at  tho  arsenal,  and  given  orders  to  be  at  all  times 
ill  readiness  to  move  cm  orders.  They  W(^re  drilled  daily  on 
u])  till  the  .'{Oth,  but  in  secrt-t  inside  tho  arsenal.  There  were 
'11  iiK  n  in  the  company.  It  is  also  shown  that  about  this  time, 
probably  ISth,  a  meeting  was  held  in  which  appellant  was  an 
active  |>articipant,  if  not  the  moving  spirit,  for  the  ])urpose  of 
arranging  to  bring  a  large;  body  of  armed  men  from  tlu;  eastern 
section  <d'  the  Stale  to  (''rankfort  for  the;  purpose,  as  appellant 
hiniscif  states  it,  of  intliiencing  tho  legislative  action  by  their 
presence.  These  men  were,  as  arranged  in  that  meeting,  to  be 
brought  from  Hell,  Jlarlan,  ("lay,  l.aurcl,  Whitley,  Pulaski, 
Itockcastle,  Metcalfe,  and  other  counties.  They  we<i'e  all  to  be 
brougiit  over  the  Louisville  &  Nashville  Railroad,  and  it  seems, 
as  lirst  contemplated,  were  not  to  have  tickets  or  passes,  but 
were  to  climb  on  tho  train  and  come.  To  arranges  for  these 
men,  and  to  have  the  n^epiisite  number  come  (there  was  about 
1,500  cnntcmplated),  messengers  were  sent  out  to  the  various 
counties,  -ind  appellant  provided  these  men  with  money  to  bring 
the  men  to  the  railroad  stations.  At  this  meeting  to  arrange 
for  these  men  it  was  re<'f>gnized  that  the  undertaking  was  a  seri- 
ous one,  aj)j)ellant  himself  cautioning  the  persons  present  to 
secrecy,  as  they  might  all  be  indicted  for  conspiracy.  To  further 
arrange  for  these  parties  to  come,  the  a])peilant,  Pow(^rs,  sent 
telegrams  to  parties  in  the  eastern  end  of  tho  State,  to  meet  him 
on  important  business  at  London,  Ky.  Appellant  had  a  con- 
ference! there  with  some  parties,  and  made  further  arrangements 
about  the  men  coming  on  January  25th.     There  was  a  third 

Vol.  XIII— 32 


i  (; 


I  :  !■ 


i   8t 


\ni 


! '  i ) 


I  i 


498 


AMERICAN  CRIMINAL  REPORTS. 


conference,  at  Barbourville,  relative  to  the  same  matter,  by  ap- 
pellant with  other  parties,  Charles  Finley,  F.  W.  Golden,  ami 
.John  L.  Powers  l)euig  ])resent.  It  was  there  (leterniinod  tliiit  the 
men  should  have  tickets  and  should  come  as  passengers.  Jn  the 
town  of  Harbourville  there  were  two  companies  of  militia,  -lolm 
L.  Powers  was  the  cajitain  <>f  one  c<)m])any,  and  J.  F.  liawii 
tlie  captain  of  the  other.  While  at  IBarhourviUe,  January  ]i2, 
1900,  ai)pellant  addressed  to  Adjt.  Gen.  Collier  a  letter,  as  Inl- 
lows:  "^My  Dear  Sir:  there  are  two  of  the  companies  in  this 
end  of  the  State  tlnit  refuse  to  go  unless  they  are  called  dut 
regularly.  The  London  com])any,  under  ('apt.  il.  I'arker,  and 
the  Williamsburg  company,  under  Capt.  Watkins,  of  Williams- 
burg, are  the  ones.  We  must  have  these  men  and  guns.  We 
are  undertaking  a  serious  matter,  and  win  we  must.  Send  some 
one  to  London  and  Williamsburg  with  such  orders  as  will  have 
these  two  companies  join  us  Wednesday  night.  Don't  fail.  If 
you  will  sec  to  it,  wire  me  to-morrow.  Golden  is  imiu'oving. 
Capt,  Ilawn,  of  one  of  the  companies  here,  refuses  to  deliver  up 
the  keys  to  the  armory.  Give  him  such  orders  as  will  give  us 
the  key.  Wire  me,  and  also  write  me.  We  will  be  there  Thurs- 
day morning  with  twelve  hundred  men  or  more.  Arrange  hnard 
and  lodging.  Very  sincerely,  Caleb  Powers."  Capt.  Ilawn,  of 
the  Parhourville  comi)any,  had  been  ask((l  to  give  tlu-  key  to  tl:e 
armnry  to  his  lieutenant,  after  he  himself  had  refused  to  bring 
his  military  company  to  Frankfort  v;ith  the  large  crowd  to  come 
on  the  2r)th,  Thursday,  and  to  permit  the  nuMubers  to  bring  their 
arms,  ammunition,  and  uniform  along.  All  of  this  Capt.  II awn 
had  declined  before  this  letter  was  written  by  apjiellant.  Before 
the  large  crowd  Avas  to  come,  a])pellant  ordered  printed  badges 
on  white  riblxni,  bearing  the  picture  and  autograph  sign;ilu;'e 
of  W.  S.  Taylor,  contcstee  for  Governor,  which  were  distril)- 
uted  to  the  men  on  the  train,  and  worn  on  their  coat  lapels. 

On  the  morning  of  January  25,  1900,  between  1,000  and 
1,200  armed  men  Avero  brought  to  Frankfort,  according  to  tliis 
prearranged  plan.  They  filled  the  regular  passenger  train,  and 
had  an  extra  train  following.  Powers  himself  came  on  one  train 
with  part  of  the  men.  As  part  of  this  large  bxly,  there  were 
several  companies  of  State  militia,  with  their  otlieers,  in  citizens' 
clothing,  but  their  uniform  imderncath,  and  with  tlieir  arms  and 
equipments.  W^hen  this  large  body  arrived  in  Fraidcf(n't,  they 
were  marched  from  the  train  to  the  building,  where  the  adjutant 


■'."VbH  ' 


1 


POWERS  V.  COMMONWEALTH. 


499 


^onoral  keeps  his  office,  and  their  guns  were  cheeked  and  staeked 
ill  the  office  of  coniniissioner  of  agriculture,  which  is  next  door 
to  the  Adjutant  General's  olliee.  Checks  had  been  provided. 
Tlio  men  kept  their  pistols,  for  the  most  part,  but  their  guns, 
aniiY  rifles,  shotguns,  and  such  like  were  checked.  The  men 
were  then  fed  from  provisions  that  had  been  brought  from 
Louisville.  These  men  were  assembled,  and  speeches  nuule  to 
tlioiii,  and  some  resolutions  adopted.  On  the  night  of  the  ^."ith, 
the  siitiio  day  they  came,  a  large  part  of  the  men  were  sent  home, 
but  about  200,  maybe  more,  ])ieked  men,  were  kept  and  re- 
iiuiincd  in  Frankfort,  with  general  head(juarters  at  the  Cora- 
uiissioner  of  Agriculture  office,  up  till  after  the  shooting.  They 
slept  in  the  State  buildings,  and  cooked  and  ate  on  the  ])ublic 
grniii  'Is.  It  is  shown  that  these  men,  from  the  2.5th,  the  day 
llii'v  came,  up  till  the  very  day  of  the  shooting,  were  each  day 
seen  in  crowds  in  front  of  the  Capitol  building,  and  on  the  walks 
leading  from  the  front  gate,  and  on  around  the  biiihlings. 

On  the  morning  that  William  Goebel  was  shot,  although  these 
iiH'ii  were  here  in  the  city,  none  were  to  bo  seen  on  the  walks  or 
public  grounds.  It  is  shown  that  within  a  short  time  of  the 
shooting,  variously  estimated  from  10  to  30  minutes,  the  com- 
pany of  militia  statiomd  at  the  arsenal  were  at  the  Capitol 
.'^Tonnds,  and  took  possession  thereof,  and  excluded  the  civil  au- 
thorities. It  is  also  shown  that  there  were  probably  as  man}'  as 
lI.')  persons  on  the  first  floor  in  the  cxtcutive  building,  from 
>vlicnce  the  shot  came,  at  the  moment  it  was  fired ;  there  were 
several  persons  in  the  secretary's  public  office,  adjoining  the  one 
from  whence  the  shot  came.  The  Governor  himself,  W.  S. 
Taylor,  who  is  accused  with  apixdlant,  was  within  50  feet  of 
the  assassin  when  the  shot  was  fired,  and  heard  the  shot.  The 
Capitol  policeman,  Jolin  Davis,  who  is  also  accused,  was  in  the 
public  office  of  the  Secretary  of  State,  and  heard  the  shot.  The 
appointees  of  the  Governor,  Todd,  private  secretai'y,  and  Stone, 
steii(i_i!,rnpher,  together  with  ai)pointees  of  appellant  in  the  oHice 
of  Secretary  of  State,  Davidson,  Hemphill,  and  Matthews,  and 
the  colored  porter,  were  also  in  the  adjoining  room  to  the  private 
office.  It  Avas  also  proven  that  Youtscy,  who  is  charged  as  one 
of  the  principals,  bought  smokeless  powder  and  steel  ball  cart- 
ridges of  the  size  and  caliber  of  the  one  shown  to  have  killed 
William  Goebel,  and  that  immediately  after  the  shooting  Yout- 
scy ran  down  the  steps  into  the  basement  of  the  executive  build- 


f 


i 


! 


4H' 


MM 


,  i  k  r  1  ,    i 

!         11:^: 

'IP      \ 


il-   i: 


;j5i4 


5  i 


«  h 


500 


AMERICAN  CRIMINAL  REPORTS. 


!;i 


hVff,  through  tho  l)arl)or  Hlinp  that  was  tlicn  thoro,  and  out  niil 
ai'duiid  the  huildinj;',  and  into  it  again  from  the  otiicr  nidc,  v(  ly 
iiiiK'li  excited.  Tlie  top  of  the  stairway  down  which  Y<)ui-( y 
ran  is  within  a  few  feet  of  the  do(ir  into  the  ])rivate  ollici'  i,( 
ajtpelhint.  It  i.^  >>u'twn  that  apjiellant  lucked  that  (l>ior  iipuii 
starting  for  Louisville,  hut  that  .jnhn  L.  J'owers  had  llic  dny 
hoforc  given  Youtsey  a  key,  and  there  were  hut  two  known.  Ir 
also  appears  that,  In'fore  the  .'{(>th,  Voutsey  had  descrihetl  ln.w 
Goel)(d  could  lie  shot  from  the  ))rivate  fitHco  from  the  wind<i\v.— 
the  identical  plan  afterwards  carried  nut.  Jn  deserihing  this 
plan,  \'oufs('y  said  it  was  the  slickest  schcuie  yet  to  st'ttic  tlie 
contest.  Just  hefore  the  shooting  Youtsey  called  and  ftalinncl 
a  body  of  uieu  iu  the  hall  near  tho  door  of  the  ])rivate  olliee,  aiiil 
near  the  head  j)f  the  stair,  down  to  the  basement,  telling  tluiu 
something  was  going  to  happen.  JJesides  all  these  circuin-^tiiiici^ 
proveji,  there  Avas  direct  evidence  of  two  or  three  admitted  Cdii- 
spirators,  showiug  that  a  conspiracy  was  formed  and  its  objects. 
Without  contradiction,  even  by  api)ellant  himself,  it  is  sIkivm 
that  he  was  the  leading  s]>irit  in  organizing  and  bringinii  llii> 
large  body  of  men  to  Frankfort,  and  in  keeping  them  here,  ;is  he 
says,  to  inlluence  the  legislature  by  their  j)resenee,  and  to  resist 
l)y  force  of  arms  tlu;  legally  constituted  authorities  in  iiny 
attemf)t  to  or.st  Taylor  or  hims(df  from  otHcc.  Fre(pi(intly  before 
the  shooting  ap]iellant  ex|)resse<l  himself  as  being  in  favor  of 
war  rather  than  surrender  the  oillces  claimed.  After  the  assas- 
sination, appellant  wrote  to  a  friend  in  eastern  Kentucky,  in 
substance:  "The  disorgttnization  of  the  I)eui".'r:»ti  p'M'ty  i-  diic 
to  me  more  than  to  any  othc*  jx-rsou.'  I  is  also  shown  tluit 
appellant  said  that,  if  necessary.  In  kill  Williir'i  Cjoelul 

to  prevent  him  Ix'iug  (jovcrnor,  ai  .uain  he  said  ,iat  with 
Goelxd  dead  there  was  no  other  ])(  ,  "U  wl  couhl  bold  the 
Democratic  party  together.  Youts(>y  \\as  rn  in  appellant's 
private  ofHce  at  the  window,  with  a  gun,  and  this  appellant 
knew  and  saw,  and  was  in  the  room  with  Youtsey  alone,  and 
had  a  conversation  with  him  on  Friday  or  Saturday  before  the 
killing  on  Tuesday,  yet  this  conversation  is  not  detailed  ly 
appellant,  nor  is  its  substance  or  subject  stated.  There  w(  re 
many  other  facts  and  circumstances  proven  on  the  trial,  all  tend- 
ing to  show  that  there  was  a  conspiracy  formed  by  apptdlant 
with  others,  kpown  and  unkuo\ni,  for  the  purpose  of  prevent- 


POWERS  V.  COMMONWEALTH. 


501 


iiifr  Gdcbol  Immtij^  declared  (ioveruor,  and  to  use  such  force  a^ 
iiii^lit  !)('  deemed  iieeeHsary  to  tliat  end. 

|)iirinf^'  the  trial  the  prosecution  introduced  and  had  sworn 
I'iit  .MeDoiuild,  who  testitied  that  on  Saturday  hotore  Tuesday, 
Jiiiiiiiiry  oOtli,  when  Oueln.'!  was  shot,  two  men  came  I'roiii 
upslairs,  where  the  general  assembly  was  in  session,  and  hail 
jiM  decided  the  (lontestcd  seat  of  Van  Meter  ajiainst  Berry,  by 
which  decision  Herry,  a  political  lulherent  and  supposed  friend 
of  Taylor,  had  been  unseated,  and  Van  Meter,  a  political  adher- 
ent and  supposed  friend  of  (Joebel,  had  been  given  the  seat ; 
and  these  two  men  went  rapidly  towards  the  front  door  of  the 
Capitol  building,  and  one  said:  *'('ome  on.  Come  on,  boys;  get 
ynur  guns;  it  is  time  to  begin  the  killing."  Witness  could  not 
mime  these  two  men,  nor  did  he  describe  them  so  as  to  be 
idetititied.  However,  witness  did  say  they  went  out  and  around 
to  the  otHcc  of  the  Commissioner  of  Agriculture,  where  the  guns 
had  been  checked  on  Thursday  iK-fore,  and  where  was  general 
hcudipuirters  of  the  200  or  more  men  kept  here,  out  of  the  largo 
crowd  of  Thursday.  The  opinion  of  the  court  holds  the  evidence 
to  be  iiicomix'tent  because  the  parties  were  not  identitied,  nor 
was  it  pretended  that  appellant  was  iiresent  and  heard  the  statc- 
ineut.  We  are  of  opinion  that  the  evidence  was  competent. 
Proof  had  been  introduced  that  tended  to  show  that  a  part  of 
the  ]dan  of  the  conspiracy  was  to  raise  a  disturbance  in  tho 
legislative  hall  over  the  Van  Meter-ljerry  contest,  and  in  the 
light  that  followed  the  men  left  over  from  Thursday,  who  wore 
Taylor  badges  and  Avere  to  be  stationed  in  the  gallery  and  lobby 
of  the  legislative  hall,  were  to  kill  Democratic  memlx-rs  of  the 
Legislature,  so  that  on  a  joint  vote  Taylor  could  lx>  declared  the 
Governor  in  the  contest  proceeding.  Wo  have  said  above  there 
were  some  200  men  retained  here  from  Thursdav,  and  there 
was  j)roof  tending  to  show  that  this  was  a  part  of  the  plan  and 
jiurpose  (jC  keeping  them.  Their  headquarters  were  in  the  very 
room  where  these  two  men,  whr,m  ^LcDonald  heard  and  saw, 
went.  Their  guns  were  deposited  there.  The  very  matter  had 
come  up  about  which  the  disturbance  was  to  Ix!  raised,  and  the 
result  had  l)een  adverse  to  Taylor.  These  men  are  shown  by 
McDonald  not  to  have  been  citizens  of  Franjifort,  for  he  lived 
here.  We  think  it  was  sufficiently  shown  that  these  men 
belonged  to  the  large  nnmber  kept  here,  and  this  testimony  also 
tended  to  corroborate  the  other  testimony  of  the  conspiracy  and 


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502 


AMERICAN  CRIMINAL  REPORTS. 


of  the  plan  to  kill  members  of  the  legislature.  The  time,  ili,' 
place,  the  circumstances,  and  the  fact  that  they  proposed  tlca 
to  do  the  thing  that  was  contemphited,  and  they  went  to  licad- 
quarters,  so  to  speak,  for  their  guns,  we  think  sufficiently  show 
that  these  two  were  acting  in  conjunction  with  others  who  arc 
shown  to  have  known  of,  and  were  detailed  to  execute,  the  ])lin.i 
of  assassination  in  the  legishitive  hall,  to  permit  the  proof  to  u,n 
to  thf  jury.  We  agree  with  the  court  that  this  was  important 
testimony,  and  wc  think  it  was  properly  admitted. 

The  appellant  offered  to  read  to  the  jury  what  purported  to 
be  the  resolutions  adopted  at  the  meeting  in  front  of  the  eapitol 
on  January  25tli,  by  the  large  body  of  men,  and  the  coml 
refused  to  permit  it  to  be  read  as  evidence  for  any  purpose, 
and  the  majority  opinion  liolds  this  to  be  error.  We  caniiut 
iissent  to  this  proposition.  We  do  not  think  these  resolutions 
were  competent  evidence  for  any  purpose.  There  was  no 
attempt  on  tlie  part  of  the  prosecution  to  prove  any  action  oii 
the  part  of  the  body  asscinbled,  nor  of  anything  said  by  any 
speaker  that  addi'essed  tlic  body.  Indeed,  it  was  not  proven  by 
the  ])rosecution  that  a  meeting  was  held  at  all,  except  as  an 
incident  to  tix  a  time  and  place  of  a  certain  conversatitm  bad 
between  two  ])ei'sons,  Xoaks  and  .John  L.  Powers.  Noaks  (letails 
the  conversation  this  way:  "While  I  was  leaning  again.'^t  the 
pillar,  John  L.  Powers  came  to  me,  and  tapped  me  on  the 
shoulder,  atid  said,  "Ijob,  keep  close  into  the  building;'  and  I 
said,  'what  is  the  matter?'  and  he  said,  'Some  of  our  men  are 
upstairs,  and  when  Goebel  and  sf>me  of  the  rest  of  them  fellows 
come  in  there  we  are  going  to  do  the  work  for  them,'  "  The 
witness  said  the  conversation  took  place  in  front  of  the  Capitol 
building,  while  the  meeting  was  going  on.  The  witness  did  not 
attemjit  to  detail  anything  that  was  done  at  the  meeting.  On 
the  contrary,  the  witness  gave  this  as  a  private  conversation 
ljetw«>en  himself  and  John  L.  Powers,  an  alleged  eo-couspirator 
with  appellant.  We  do  not  understand  upon  what  principle 
of  law  or  rule  of  evidence  that  this  would  entitle  appellant  to 
prove  what  the  public  meeting  did,  nor  what  any  one  of  the 
thousand  persons  engaged  therein  said  or  did.  A])pellant  was 
entitled  to  the  whole  of  the  conversation  iK'tween  Xoaks  ami 
John  L.  Powers,  and  this  the  court  permitted;  but  the  rule 
would  not  extend  to  the  admission  of  wiiat  was  or  may  have 
been  said  in  private  conversation  by  others  there  present  while 


POWERS  V.  COMMONWEALTH. 


503 


the  meeting  was  in  progress.  We  do  not  understand  that  the 
statoniciits  of  John  L.  Powers,  supra,  were  admitted  because 
of  the  time  and  phicc  tlicy  were  spoken,  but  because  it  had  been 
sliown  uliuiule  that  J<jhu  L.  Powers  acted  with  appellant  in 
bringing  tin;  hirge  crowd  to  Frankfort,  and  knew  and  under- 
stood the  full  object  in  thus  bringing  them.  Indeed,  John  L. 
Powers  at  that  time  is  shown  to  liave  had  his  military  company 
here,  with  their  uniforms,  arms,  and  equipments,  and  was  a 
leader  in  conunand,  and,  it  might  be  said,  spoke  as  one  with 
authority.  This  evidence  would  have  been  admissible  if  spoken 
at  any  other  time  and  place,  and  because  Powers  spoke  to  Xoaks 
the  words  of  caution  or  warning  to  be  on  the  alert  at  the  time 
the  meeting  was  in  progress  did  not  and  could  not  render 
adunVsible  evidence  of  the  public  proceedings  of  the  meeting,  as 
neither  was  u  j)art  of  the  other,  nor  explanatory  thereof,  and, 
in  fact,  had  no  connection  the  one  with  the  other,  save  that  of 
time  and  place.  Then;  was  ])r(M)f  also  of  statements  made  by 
more  ])ersons  in  the  crowd,  but  the  whole  of  these  declarations 
was  ailmilted,  and  such  jjroof  diri  not  warrant  evidence  of  other 
statements  made  at  a  dillerent  time,  even  by  the  same  parties 
and  at  the  same  place. 

There  is  a  yet  stronger  reason  why  the  testimony  was  prop- 
erly excluded.  The  whole  testimony  tends  to  show  that  the 
plans  and  i)uri)oses,  as  well  as  the  fact,  of  their  coming,  was  kei)t 
secret  from  the  public.  Cipher  telegrams  Avere  sent,  and  mes- 
sages were  signe(l  by  initial  instead  of  the  full  name,  and  such 
like  acts,  to  keep  the  matter  secret.  Secrecy  was  enjoined  by 
apjieliant  on  all.  "It  was  a  serious  business  they  were  under- 
taking," to  use  an  expression  of  a])pellant;  and  no  rule  of 
evidence  would  permit  this  armed  bo<ly  to  prove  for  thennelves, 
to  establish  their  innocence,  the  fact  that  they  held  a  puitlic 
meeting  on  tlu;  ( 'apitol  steps,  and  then^  passed  resolutions  dfchu'- 
ing  their  pea<'eful  mission  and  intentions,  when,  at  the  same 
time,  they  had  arms  and  aiiinuinition  ready  at  hand  in  abun- 
dance, as  well  as  smaller  arms  on  their  person.  The  law  will 
not  jtermit  such  proof  as  a  person's  own  declarations  of  inno- 
cence to  show  that  he  is  not  gnilty.  Would  any  ])erson  suppose 
that  this  body  of  men  would  have  assembled  on  the  Ca])itol  stops, 
and  by  resoluaon  have  declared  their  purpose  to  be  that  of  ter- 
rorizing and  intimidating  the  mendM'r .  of  the  general  assembly, 
"or,  if  necessary,"  to  use  Powers'  words,  "kill  Goebel  to  prc- 


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504 


AMERICAN  CRIMINAL  REPORTS. 


vent  liim  being  Governor"  ?  We  say,  if  this  was  their  piirposo, 
would  any  person  expect  them  to  j)nblicly  so  declare  by  resolu- 
tion ?  If  their  purpose  was  a  peaceable  one,  as  the  resolutions 
must  of  necessity  declare,  to  be  of  benefit  to  appellant,  why  were 
all  these  v.arlike  ])re}iarations  made  i  Why  tlu^se  arms,  am- 
munition, and  soldier  equipment  brought?  We  think  this  testi- 
mony properly  excluded. 

It  is  also  maintained  that  instruction  12  asked  by  a])i)(llant 
should  have  bei'U  ';'iven,  to  the  elt'ect  that  the  evidence  of  A.  11. 
Kecd,  J.  B.  Walkiuj,  /'.  j)akeal  Scats,  and  X.  C  Ilazlewood 
could  only  be  considered  by  the  jury  for  the  purpose  of  dis- 
crediting the  witness  S])arks,  and  not  as  substantive  testimony 
against  appellant.  It  is  held  by  four  members  of  the  court  that 
this  testimony  might  have  Ix'en  considered  as  substantive  evi- 
detic'>  on  the  merits  of  the  case  if  it  had  been  given  in  chief,  as 
there  was  testimony  tending  to  show  that  Sparks  was  one  of  the 
conspirators,  and,  if  this  was  true,  his  declarations  W(  re  com- 
petent against  a]>pellant.  It  Avas  on  this  ground  the  court  below 
refused  to  give  the  instruction;  but  it  is  said  diat,  although  this 
testimony  would  have  been  competent  on  the  merits  if  ailniitted 
in  chief,  it  could  only  1x3  considered  for  the  ])urpose  of  dis- 
crediting Sparks,  as  it  was  not  introduced  in  chief,  but  as  a 
part  of  the  State's  rebuttal  testimony.  There  might  be  force 
in  this  position,  if  it  appeared  that  appellant  was  in  any  wise 
prejudiced  by  the  failure  of  the  State  to  introduce  this  testi- 
mony at  the  j)i'o])er  point;  but  where  he  was  not  misled,  and 
h;is  had  full  opportunity  to  introduce  all  tlie  tistimony  on  the 
subject  that  he  desired,  there  seems  little  force  in  the  objection. 
The  ti'ial  court  has  a  discntion  to  admit  evidence  in  rebuttal 
whii'li  should  have  Ixk-u  admitted  in  chief,  when,  under  the  cir- 
cunistiinces,  it  may  a])pear  right  to  do  so,  especially  in  a  case 
involving  a  great  multitude  of  facts  like  this;  and  this  court 
ncNcr  interferes  with  the  exercise  of  a  discretion  of  this  char- 
acter, utdess  jialpably  abused.  The  trial  court  did,  however, 
give  the  jury  instructii  n  0,  which  is  as  follows:  ''If  the  jury 
helieve  from  the  evidence  beyond  a  reasoiKd)'e  doubt  that  a 
conspiracy  was  formed  Ixitween  the  defendant  and  W.  11.  Cul- 
ton,  F.  W.  (Jolden,  Green  Golden,  John  L.  Powers,  John  Davis, 
Charles  Finley,  W.  S.  Taylor,  Henry  Youtsey,  James  Howard, 
I'(Mry  Howard,  Harlan  Whitaker,  Ilichard  Combs,  or  either  or 
any  (.f  them,  or  with  others  to  the  jury  unknown  actiisg  in  con- 


POWERS  V.  COMMONWEALTH, 


505 


cert  with  them,  or  either  of  them,  to  kill  William  Gocbel,  then, 
al'tor  tin  formation  of  said  conspiracy,  if  any,  every  act  and 
declaration  of  each  of  tlie  conspirators,  done  or  said  in  further- 
ance of  the  common  design,  before  the  cousunnuation  thereof, 
hecaiiie  the  act  or  declaration  of  all  engaged  in  the  conspiracy." 
Under  this  instruction,  no  statement  of  Sparks  could  be  con- 
sidered by  the  jury,  unless  he^  was  one  of  the  consi)irators,  and 
not  then,  unless  it  was  made  in  furtherance  of  the  common 
design.  This  was  more  favorable  to  the  accused  than  the  rule 
usually  laid  down  by  the  authorities.  "When  the  fact  of  a 
conspiracy  has  been  proved  or  established  by  reasoua])le  infer- 
ence, the  acts  and  declarations  of  one  conspirator  in  furthei'ance 
of,  or  made  with  reference  to,  the  common  design,  are  admis- 
sible in  evidence  against  his  associates."  6  Am.  &  Eng.  Enc. 
Law  (2d  Ed.)  800.  In  the  notes  to  the  above,  a  large  number 
of  cases  are  collected.  Under  the  instructions  of  the  court  as 
given,  the  testimony  as  to  the  declarations  of  Sparks  could  not 
1h'  considered  by  the  jury  at  all,  unless  it  was  shown  beyond  a 
reasonable  doubt  that  Sparks  was  one  of  the  cons])iratnrs,  and 
the  statements  were  made  in  furtherance  of  the  conspiracy.  We 
are  therefore  unable  to  see  that  the  appellant  has  any  ground 
of  complaint  in  this  matter. 

It  is  also  maintained  that  the  court  erred  in  giving  to  the  jury 
instructions  4,  7,  and  8 ;  but  it  is  difficult  to  perceive  how  either 
(if  these  instructions  furnishes  any  ground  for  a  reversal  of 
the  jiidginent. 

First.  As  to  instruction  Xo.  4:  The  idea  the  court  aimed  to 
present  to  the  jury  by  this  instruction  was  that  if  a[)])ellant  con- 
spired with  others  to  bring  a  number  of  armed  men  to  Frank- 
fort for  the  purpose  of  intimidating  the  Legislature  in  its  action 
on  the  contest  ix'fore  it,  and  in  pursuance  of  said  ccuspiracy 
advised  the  killing  of  members  of  the  Legislature,  and  (Joebel 
was  killed  by  those  in  conspiracy  or  acting  with  them,  in  pur- 
suance of  said  advice,  appellant  was  guilty  of  murder.  If  the 
l)hraseology  of  the  instruction  is  changed  as  indicated  in  the 
o])iniun,  it  would  read  as  follows:  "(4)  If  the  jury  believe 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  de- 
feinjant,  Caleb  Powers,  conspired  with  .  .  .  or  either  or 
any  of  them,  or  other  person  or  persons  unknowni  to 
the  jury,  acting  with  them,  to  bring  a  number  of  armed  men 
to    Frankfort    for    the    purpose    of    doing    an    unlawful    or 


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AMERICAN  CRIMINAL  REPORTS. 


criminal  act,  and  in  pursuance  of  such  conspirac}-  fl(- 
fendont  did  advise,  counsel,  or  encourage  the  killing  of  nieiii- 
bers  of  the  Legislature,  and  that  said  William  Gochel  was  a 
member  of  the  Legislature,  and  was  killed  in  pursuance  of  siicli 
advice,  counsel,  or  encouragement,  and  that  said  killing  was 
induced  or  brought  about  thei'eby,  then  the  defendant  is  g"iiilrv 
of  murder,  whether  the  person  who  jierpetrated  the  act  which 
resulted  in  the  death  of  William  Gnebel  be  identified  or  not,  and 
it  does  not  matter  what  change,  if  any,  was  made  by  the  eo'i- 
spirators  as  to  their  original  design,  or  the  manner  of  accniu- 
plishing  the  unlawful  purpose  of  the  conspiracy."  Jf  tlu; 
instruction  is  put  in  this  shape,  the  st-nse  will  be  in  no  wis(> 
materially  different  from  that  given  by  the  court  below  and 
(juoted  in  the  majority  opinion.  It  undoubtedly  expresses  a 
sound  principle  of  law;  for  if  apjielhint,  and  those  acting  in 
concert  with  him,  brought  the  armed  men  to  Frankfort  f'ni-  an 
unlaAvf'ul  and  criminal  purpf)se,  and  he,  in  furthcranc(!  (d'  the 
conspiracy,  advised  the  killing  by  them  of  the  members  of  the 
Legislature,  and  thus  brought  about  the  killing  of  Gocbcd,  ln' 
was 'certainly  guilty  of  nmrder,  although  a  change  was  made  in 
the  i)lan  or  the  manner  of  executing  it.  We  are  unable  1o  sic 
that  there  was  any  error  in  this  matter.  The  words,  "uiihiwt'ul 
act,"  are  defined  in  instruction  No  7,  which  will  next  be  con- 
sidered. 

Second.  As  to  instruction  No.  7:  In  1  Kolx'rson,  Ivy.  Cr. 
Law,  5?  too,  the  author,  illustrating  the  rule  that  "a  conspiracy 
to  conuint  a  crime  may  be  consumnuited,  and  the  conspirators 
become  gnilty  thereof,  although  the  plan  is  not  executed  in  exact 
accordance  with  the  original  conception,"  w(dl  states  the  result 
of  the  authorities  as  follows:  ''So,  if  several  persons  conspire 
to  invade  a  man's  household,  and  go  there  armed  with  tieadly 
weapons,  for  the  purpose  of  attacking  and  beating  him,  and  in 
furtherance  of  this  common  design  one  of  them  gets  into  a  difii- 
culty  with  him  and  kills  him,  the  others  l)eing  present  or  near 
at  hand,  the  latter  arc  guilty  of  murder,  although  tluy  did  not 
intend  to  kill.  Where  jjcrsons  combine  together  for  a  genera! 
unlawful  i)urpose,  as  'to  resist  all  opposers  in  the  commission 
of  a  breach  of  the  peace,'  and  for  that  purpose  assemble  togctlu  r 
and  arm  themscdvea,  thus  intending  to  resist  the  lawfully  con- 
stituted authorities  of  the  country,  they  are  all  answerable  for 
anything  done  in  the  execution  of  it,  and  it  is  no  defense  that 


POWERS  V.  COMMONWEALTH. 


507 


the  parties  had  no  well-defined  or  particular  mischief  in  vicAV 
as  the  result  of  their  combination.  If  ]i.'>vsons  illegally  concur 
in  doing  an  act,  they  are  guilty  of  a  conspiracy,  although  they 
were  not  previously  acquainted  with  each  other.  And  the  time 
when  one  entered  into  a  conspiracy  does  not  make  any  diiferencc 
as  to  his  responsibility  for  acts  done  to  carry  out  the  connnon 
jiurposf,  the  rule  being  that  those  who  join  in  a  conspiracy  previ- 
ously formed,  and  assist  in  its  execution,  become  a  party  to  all 
acts  done  by  other  parties,  before  or  afterwards,  in  furtherance 
of  the  original  (lesign.  The  addition  of  new  parties,  suhscciucnt 
to  the  formation  of  the  cons]iiracy,  does  not  destroy  its  identity, 
but  it  continues  as  the  same  conspiracy."  In  Peden  v.  Slate, 
Gl  Aliss.  2GS,  several  persons  conspired  to  take  the  deceased 
from  his  house  and  whip  him.  In  execiiting  this  purpose,  one 
of  them  struck  him  a  fatal  blow  with  a  spade,  from  whi(,'h  ho 
died.  All  were  held  guilty  of  murder,  whether  they  entertained 
a  purpose  to  kill  him  or  not.  The  same  rule  was  announced  in 
State  V.  Shelledi),  8  Clarke,  478;  Miller  v.  Stale,  25  Wis.  JiSi; 
and  Williams  v.  Slate,  81  Ala.  1  (1  South.  171)).  In  1  Hale, 
P.  C.  411,  the  law  is  thus  stated :  "If  divers  persons  come  in 
one  company  to  do  an  unlawful  thing,  as  to  kill,  rob,  or  beat  a 
man,  or  to  commit  a  riot,  or  to  do  any  other  tres])ass,  nml  one 
of  them  in  doing  thereof  kill  a  man,  this  shall  be  adjudged 
murder  in  them  all  that  are  present  of  that  party,  abetting  him 
and  eousenting  to  the  act,  or  ready  to  aid  him,  altliough  they 
did  buL  look  on."  The  same  princijjle  applies  to  those  who  set 
on  foot  and  procure  the  unlawful  undertaking,  though  al)-;ent 
from  the  scene  when  the  deed  is  done.  Spies  v.  People,  1 22  111. 
1  (12  N.  E.  805,  17  X.  E.  St)8;  3  Am.  St.  Kep.  320)  and  note. 
Thus,  in  Brennan  v.  People,  15  111.  512,  several  persons  wei*e 
indicli'd  for  murder.  Instructions  Avere  asked  to  the  eilVct  that 
the  jury  should  acquit  certain  of  the  prisoners  unless  they 
actually  participated  in  the  killing  of  the  deceased,  or  the  kill- 
ing was  done  pursuant  to  a  common  design  to  take  his  life  on 
the  part  of  the  prisoners  and  those  doing  ihe  act.  The  court 
said:  "Such  is  not  the  law.  The  prisoners  may  be  guilty  of 
murdei*,  although  they  neither  took  part  in  the  killing,  nor 
assented  to  any  arrangement  having  for  its  object  the  death  of 
Story.  It  is  sutHcient  that  tiiev  condnned  with  those  com- 
mitting  the  deed  to  do  an  unlawful  act,  such  as  to  b(nit  or  rob 
Story,  and  that  he  was  killed  in  the  attempt  to  execute  the 


*\\\ 


,< 


'i  '  i  ? 


u:  \ 


! 


si 


i  r  ■ 


I  i 


1  'i '  ■ 

t 

\ 

508 


AMERICAN  CRIMINAL  REPORTS. 


common  purpose.  If  several  persons  conspire  to  do  an  unlawful 
act,  and  death  happens  in  the  prosecution  of  the  common  object, 
all  are  alike  guilty  of  the  homicide."  The  rule  is  thus  clearly 
stated  in  G  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  870:  "Wlicii 
individuals  associate  themselves  in  an  uidawful  enterprise,  any 
act  (lone  in  pursuance  of  the  conspiracy  by  one  of  the  conspii'a- 
tors  is,  in  legal  contemplation,  the  act  of  all."  And  in  a  note 
this  is  added:  "It  is  immaterial,  as  affecting  the  question  of 
co-e(pial  resi)onsibility  on  the  })art  of  conspirators  for  the  acts  of 
each  other,  that  one  or  more  were  not  actually  present  at  the 
consummation  of  the  preconcerted  design."  At  counuoTi  law, 
if  the  object  of  the  conspiracy  be  the  ct)mmission  of  a  felony, 
and  a  homicide  is  committed  in  carrying  its  design  into  execu- 
tion, the  killing  is  nuu'der;  and  the  authorities  concur  that  if 
the  unlawful  act  designed  is  dangerous,  and  probably  ro(iniring 
the  use  of  force  or  violence,  which  may  result  in  the  taking  of 
life,  all  the  conspirators  arc  criminally  liable  for  whatever  any 
of  them  may  do  in  furtherance  of  the  conunon  design,  whellier 
they  are  present  or  not.  1  Hish.  New  Cv.  Law,  ^S  ().'5-'5a.  <i;5<); 
Lamb  v.  People,  90  111.  73 ;  U.  S.  v.  Lancaster  (C.  V.)  44  Fed. 
fey(>  ( 10  L.  It.  A.  333)  ;  Boyd  v.  U.  S.,  142  U.  S.  450  (12  Sup. 
Ct.  202,  35  L.  Ed.  1077) ;  U.  S.  v.  lioss,  1  Gall.  024,  Fed.  ("as. 
No.  1G,1'.)0;  People  v.  Brown,  59  Cal.  351;  Reeves  v.  Terr'dory 
(Okl.)  01  Pac.  828. 

.Section  1241a,  Ky.  St.,  contains,  among  others,  the  follow- 
ing ))rovision:  "(1)  if  *^"y  two  or  more  persons  shall  confeder- 
ate or  band  themselves  together  for  the  purpose  of  intimidating, 
alarming,  disturbing,  or  injuring  any  pers<iu  or  persons,  .  .  . 
they  or  eitluT  of  them  shall  Ik.'  deemed  guilty  of  a  felony,  and 
upon  conviction  shall  be  confined  in  the  penitentiary  not  less 
than  one  nor  moi'o  than  five  years."  It  will  thus  be  seen  that 
it  is  made  a  felony  for  two  or  more  persons  to  confederate  them- 
selves together  for  the  ])urpose  of  intimidating  or  alarming 
another.  Eollowing  the  autlutrities  we  liave  citeil  and  the  fore- 
going statute,  the  court  gave  the  jury  instruction  No.  7,  in  these 
words:  "The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant, 
Caleb  Towers,  conspind  with  W.  IL  ("niton,  F.  W.  Golden, 
Green  Golden,  John  L.  Powers,  John  Davis,  Charles  Finley, 
W.  S.  Taylor,  Henry  Youtsey,  James  Howard,  Berry  Howard, 
Uarlan  Whitaker,  Itichurd  Combs,  or  any  one  or  uuu-e  of  them, 


POWERS  V.  COMMONWEALTH. 


509 


or  with  some  other  person  or  persons  nnknov.-n  to  the  jury, 
actinfi'  with  them  or  either  of  them,  to  do  some  nnUxwful  act, 
and  that  in  pnrsnance  of  such  conspiracy,  or  in  furtlicranco 
thereof,  the  said  Henry  Yontsey,  James  Howard,  Berry  How- 
ard, Harlan  Whitaker,  Kicliard  Comhs,  or  some  one  of  tlieni, 
or  sduie  other  ])erson  nnknown  to  the  jnry,  acting  Avitli  tlieiii, 
or  with  those  wlio  conspired  with  the  (h'fcndant,  if  any  sncli  con- 
spiracy there  was,  to  do  the  unhiwfnl  aot,  did  shoot  arid  kill 
William  Goebel,  the  defendant  is  pnilty,  althongh  tlie  jnry  may 
believe  from  the  evidence  that  tin;  original  pnrpose  was  not  to 
j)rocnre  or  bring  abont  the  death  of  William  Goebel,  but  was 
for  some  other  unlawful  and  criminal  purpose.  The  words  'im- 
lawfnl  act,'  as  used  in  this  instruction,  mean  some  act  to  alarm, 
to  excite  terror,  or  the  infliction  of  bodily  harm."  ^ot  a  few 
iuithdrities  hold  that  if  the  conspiracy  involves  the  commission 
of  a  felony,  and  a  homicide  is  committed  by  any  of  the  con- 
s])irators  collaterally  to  the  main  desigii,  and  not  in  pursuance 
(if  it,  all  are  gnilty  of  murder.  It  will  be  observed  th.t  the 
court  did  not  so  instruct  the  jnry,  but  that  by  the  instruction 
quote<l  above  they  were  plainly  told  that  the  homicide  nmst  have 
been  conunitted  in  pursuance  of  the  conspiracy  or  in  further- 
ance of  it.  The  instruction  was  intended  to  present  to  the  jnry 
this  idiase  of  the  case  shown  by  the  evidence:  While  the  Legis- 
lature had  before  it  the  election  contest,  a])pellant  and  a  number 
of  others  entered  into  a  conspiracy  to  bring  to  Frankfort^  a 
large  body  of  armed  men,  some  of  them  feudists,  and  others 
known  for  their  dangerous  character,  for  the  purpose  of  in- 
timi(biting  the  Legislature  in  the  discharge  of  its  oflicial  duties, 
and  pursuant  to  this  conspiracy  they  got  together  about  1,000 
men,  and  brought  them  to  Frankfort.  This  body  reached 
Fraid<fort  on  January  2r)th.  ^ilost  of  them  were  sent  home 
that  evening,  but  about  200  picked  men  were  retained,  and  Avero 
still  at  Frankfort,  armed,  collected  about  the  State  house,  and 
crowding  the  lobbies  from  day  to  day,  initil  the  deceased  wa? 
killed,  on  January  30th.  On  January  2r)th,  a  number  of  these 
men  undertook  to  force  their  way  into  the  hall  of  the  House  of 
Kepresentatives,  and  a  catastrojihe  was  then  narrowly  averted  by 
the  prudence  of  the  speaker.  A  conspiracy  of  such  a  character 
was  of  necessity  dangerous  to  life,  and  subversive  of  the  founda- 
tions of  the  State  Government.  'No  one  realized  the  gravity  of 
the  undertaking  better  than  appellant,  for,  in  his  letter  written 


l; '  :;•  I  : 


1  m 


i  ?  !   ;    !l 


i 


l\. 


i 


\ 


510 


AMERICAN  CRIMINAL  REPORTS. 


■while  getting  his  men  together,  he  said,  as  quoted  above :  "We 
must  have  these  men  and  guns.  We  are  undertaking  a  serious 
matter,  and  win  we  nuist."  His  friend,  the  banke^',  John  A. 
Bhiek,  says:  "lie  said  he  wanted  an  armed  mob,  .  .  .  iind 
that  it  would  likely  hav^  an  intluence  over  the  I^cgislature."  As 
we  understand  the  court,  the  instruction  is  held  erroneous  for 
the  reason  that  it  does  not  submit  to  the  jury  the  questicDi 
whether  the  homicide  was  the  natural  result  of  the  conspiracy, 
or  such  a  thing  as  might  be  ordinarily  expected  to  happen.  It 
is  not  necessary  that  the  death  of  the  deceased  should  have  ])<■(  n 
contemplated  as  the  probable  result  of  the  conspiracy'.  \i  tlio 
conspiracy  was  such  that  the  conspirators  must  naturally  hav(* 
contemplated  that  it  would  result  in  violence,  or  that  the  intlic- 
tion  of  personal  harm  upon  others  might  reasonabh-  be  aiilici- 
pated  in  ite  execution,  then  all  ai'e  responsibh'  for  the  homicide. 
On  the  facts  of  the  case,  it  would  have  been  both  idle  and  im- 
])roper  to  have  submitted  to  the  jury  whetluM-  the  death  of  tlio 
deceased  was  a  result  reasonably  to  be  anticipated  by  those  enter- 
ing the  conspiracy  ;  for  the  character  of  the  conspiracy  was  such 
as  necessarily  involved  a  sliow  of  force,  and  deeds  of  violence 
were  plainly  within  its  probable  conseqiiences.  It  is  wholly 
immaterial  wlu^ther  the  death  of  the  deceased  was  anticipated,  or 
the  death  of  any  other  person  in  particidar.  Such  a  crime 
against  go<jd  government  cannot  be  tolerated  among  a  law-lovin^^; 
people,  and  those  who  undertake  to  stop  the  ordimiry  proeessivs 
of  the  law  by  intimi<lation  and  force  must  be  held  responsible 
for  all  the  consequences  of  what  is  done  in  furtherance  of  the 
design.  The  court  might  properly  have  instructed  the  jury,  in 
plain  words,  that  if  there  was  a  conspiracy  to  bring  a  band  of 
armed  men  to  Frankfort  for  the  purpose  of  intimidating  the 
I-.egislature  in  the  discharge  of  its  official  duties,  and  the  men 
were  so  broiight  to  Frankfort,  and  the  deceased  was  killed  in 
furtherance  of  this  conspiracy,  or  in  pursuance  of  it,  by  any 
one  of  these  men  or  of  those  in  the  conspiracy,  appellant,  if  a 
party  to  the  conspiracy,  was  guilty  of  murder.  The  instruction 
he  gave  is  more  favorable  to  the  appellant  than  the  one  indi- 
cated ;  for  the  reason  that  it  states  to  the  jury  the  general  rule 
of  law,  without  directing  their  attention  to  the  j)articidar  facts 
of  the  case.  The  court,  no  doubt,  put  his  instruction  in  this 
form  for  the  benefit  of  the  appellant,  and  to  conform  to  a  line  of 
decisions  by  this  court  condemning  instructions  given  promi- 


POWERS  V.  COMMONWEALTH. 


511 


IK  nco  to  certain  facts.  The  instruction  appears  to  us  to  he  not 
only  unobjectionahk'  in  point  of  law,  but  to  be  more  favorable 
to  the  appellant  than  the  law  required. 

Third.  As  to  instruction  Xo.  8:  Section  241  of  the  Crim- 
inal Code  of  Practice  provides:  "A  conviction  cannot  be  had 
upon  the  testimony  of  an  accomplice,  unless  corroborated  by 
other  evidence  tending  to  connect  the  defendant  with  the  com- 
uii:?sion  of  the  offense;  and  the  corroboration  is  not  sufficient  if 
it  merely  shows  that  the  offense  w.'is  cenmiitted,  and  the  cir- 
cumstances thereof."  Following  the  words  of  the  statute,  the 
trial  court  gave  instruction  Xo.  8,  which  is  as  fnll(jws:  ''The 
jury  cannot  convict  the  defendant  upon  the  testimony  of  an 
accomplice,  unless  such  testimony  Ix^  corrolmratiMl  l)y  other  evi- 
dence ten(lin,i;  to  connect  the  defendant  with  the  cummission  of 
the  offense;  and  the  cnrroboration  is  not  sullicicnt  if  it  merelv 
shows  that  the  oil'disi'  was  committed,  and  the  circumstances 
Thereof."  It  is  maintained  that  the  instruction  is  misleading, 
as  there  were  several  accomplices  who  testified  on  the  trial,  and 
umler  it  the  jury  may  have  understood  they  were  warranted 
in  convicting  on  the  testimony  of  one  aeeom|)li('e  when  supported 
by  another,  and  that  thus  appellant  might  hv.  convicted  on  the 
tcstinmny  of  aecouiidiccs  without  other  corroborating  evidence. 
The  statute  eh  arly  di.cs  not  allow  this;  for  this  would  be  but 
a  conviction  "upon  the  testimony  of  an  accomi)lice."  The  words, 
''unless  corroborated  liv  otli(>r  evidence,"  clearlv  refer  to  other 
evidence  than  the  t(<fiiii(iny  of  an  aeeoniplice.  The  instruc- 
tion is  in  the  wo'.'ds  nf  the  statute,  and  conveys  the  same  mean- 
ing, although  the  sense  might  have  been  made  plainer  by  adding 
an  ''s"  to  the  word  "aeeomplice,"  and  omitting  the  word  "an," 
so  as  to  make  the  clause  read:  "The  jury  cannot  convict  the 
defendant  upon  the  testimony  of  accomplices,  unless,"  etc. 

The  testimony  of  the  accomplices  as  to  the  vital  facts  was 
corroborated  by  other  evidence,  and  by  circumstances  established 
beyond  question.  It  is  clearly  shown  that  appellant  Avas  not 
only  a  party  to,  but  a  leading  spirit  in,  the  conspiracy  to  bring- 
to  Frankfort  and  keep  here  the  band  of  men,  supplied  with 
arms  and  ammunition.  Such  things  are  not  done  vainly  or 
without  a  purpose.  X^o  jury  of  intelligence  could  believe  that 
such  an  armament  could  be  organized  and  brought  to  the  seat  of 
government  but  for  the  purpose  of  intimidation.  Whether  they 
might  not  also  infer,  from  the  fact  that  so  many  of  the  State 


::'iJ. 


I  ■ 


'  • 


iil 


m§ 


AMERICAN  CRIMINAL  REPORTS. 


:,jm 


militin  woro  broup;ht  alon^  thvasod  in  citizens'  clothes,  tlial  tlic 
puriK'sc  was  to  use  this  fliilitia  as  Statti  troops  to  protect  iIhiu 
from  arrest,  or  to  hold  their  own  against  tiie  civil  authorities, 
we  neetl  iml  (leterniine.  In  any  view  of  tlio  facts,  the  enterpri'^;' 
was  a  felony,  producing  a  condition  of  anarcliy  at  the  Sliitc 
(ioverniiient,  and' the  ])eaco  and  good  name  of  the  State  nMiiiin* 
that  the  majesty  of  the  law  should  l)e  upheld  in  such  a  manner 
that  it  will  n:>t  1m'  repeated.  It,  of  nec(>ssity,  contemplated  such 
a  state  of  tilings  that  violence,  if  not  l)loodshe(l,  would  follow 
in  its  wake,  and,  where  a  homicide  was  connnitted  in  further- 
ance of  it,  a]ipellant,  who  was  its  director,  was  clearly  guilty  of 
murder. 

To  reverse  the  judgment  of  conviction  on  the  facts  whieh  are 
either  admittetl,  or  so  clearly  estahlished  as  to  l)e  beyond  con- 
troversy, is  not  only  to  delay  justice,  hut  to  give  no  f(>rce  to  the. 
statute  provided  that  such  judgments  may  only  Ix'  reversal 
when,  on  the  whole  record,  the  court  is  satisfied  the  suhsta.itial 
rights  of  the  accused  have  been  ))rejudiced.  We  therefore  dis- 
sent from  the  opinio"!  of  the  court. 

l*AYNTi:i{,  ('.  ,].,  and  Houson,  J.,  concur  in  this  dissent. 
(See  70  S.  W.  liep.  lOoO;  24  Ky.  Law  Kep.  108C.) 

Note.— Powers  was  again  put  on  trial  and  convicted,  which  con- 
victlon  was  also  reversed.  To  economize  space  we  incorporate  the 
opinion  in  these  notes  as  follows: 

POWKKS    v.     CoMAIOXWIOALTTr. 

114  Ky.  237—24  Ky.  Law  Repr.  li)07— 70  S.  W.  Rep.  644. 
Decided    Dec.   3.   1902. 

O'Rkau,  J.  Appellant,  Caleb  Powers,  -as  Indicted  by  the  grand  jury 
of  Franlvlin  County,  charged  with  being  an  accessory  before  t!ie  fact 
to  the  murder  of  William  Goebel.  On  a  change  of  venue  h\  Scott 
County,  he  has  been  twice  tried  and  convicted.  On  this  appeal,  num- 
erous questions  of  law  are  presented,  some  of  which  were  considered 
by  the  court  on  the  former  appeal,  110  Ky.  3SG,  22  Ky.  Law  Rpr.  1807. 
Gl  S.  W.  733,  53  L.  R.  A.  24.').  Others  now  presented  do  not  appear 
to  have  been  raised,  or  at  least  not  passed  upon  by  the  court.  We 
do  net  feel  that  it  would  be  profitable,  or  even  possible,  within  rea- 
sonable range,  to  set  forth  all  the  facts  proven  by  each  side  upon  the 
trial.  To  allow  an  intelligent  understanding  of  the  propositions  herein 
decided,  we  give  a  general  statement,  only,  of  the  facts  of  the  case, 
and  the  contentions  of  the  prosecution  and  of  the  defense. 

The  murdered  man,  William  Goebel,  was  at  the  time  of  his  death 
a  Senator  of  this  Commonwealth,  and  had  lately  been  engaged  in  a 
canvass,  as  the  nominee  of  his  party,  for  the  high  office  of  Governor 
of  the  Commonwealth.     His  opponent  at  the ,  general  election  held 


kiJIj 


POWERS  V.  COMMONWEALTH. 


513 


November,  1899,  was  Wlillam  S.  Taylor,  then  Attorney  General  of 
Kentucky.  Senator  Goobel  had  attained  a  commar'^'ng  eminence 
and  influence  In  his  party,— being  a  loader  of  grea  ,  ability,  with 
attributes  of  most  positive  and  forceful  character.  These  qualities 
enlist  u  devoted  following.  After  one  of  the  most  exciting,  intense 
campaigns,  the  returns  of  the  election  showed  Taylor's  election,  and 
that  of  all  the  other  State  officers  on  the  ticket  with  him.  The  legis- 
lature elected  at  the  same  time,  however,  was  of  the  same  political 
faith  as  Mr.  Goebel;  a  majority  of  each  house  being  in  political 
nccord  with  him  and  his  supporters.  Under  the  then  law,  it  waa 
piovided  that  a  central  board  of  election  commissioners  should  try 
all  contests  over  Staio  n<^ces,  except  those  of  Governor  and  Lieutenant 
Governor,  which  were  to  be  tried  by  the  Legislature.  Certificates  of 
election  were  awarded  the  Republican  candidates.  Notices  of  con- 
test were  directly  served  on  all  of  them.  '  The  Legislature,  which 
was  to  try  the  contest  over  the  offices  of  Governor  and  Lieutenant 
Governor,  met  1st  of  JanuaiT.  1000.  The  grounds  of  contest  attacked 
the  validity  of  the  election  as  held  In  a  number  of  counties  that  had 
given  largo  Republican  majorities,  based  mainly  upon  an  allegation 
that  the  official  ballots  used  were  thinner  than  they  should  have  been. 
The  bitterness  engendered  by  the  campaign,  aggravated  by  grave 
charges  and  countercharges,  was  thus  kept  up,  and,  indeed,  apparently 
augmented.  True,  appeals  were  also  being  made  to  what  was  thought 
to  be  better  reason  and  patriotism.  It  appeared  that  some  thought 
the  emergency  so  grave  as  to  make  necessary  the  consideration  of 
revolution.  Whether  grounds  actually  existed  for  all  this  is  not  now 
hO  material,  as  whether  they  appeared  to,  and  were  In  fact  by  many 
actually  believed  to  exist.  The  cai)ital  was  the  center  of  attention, 
and  the  events  transpiring  were  the  subject  of  earnest  thought. 
Naturally  and  necessarily,  many  witnesses  for  each  of  the  contestants 
were  called  there.  Incidentally  many  people  came,  also,  whether  out 
of  curiosity  or  Interest,  or  sympathy  with  one  side  or  the  other  of 
the  litigants.  Appellant  contends  that  It  came  to  his  ears,  and  to 
tlie  attention  of  the  otiier  State  officials,  that  their  opponents  and 
their  adherents  intended  summarily"  taking  possession  of  the  offices 
upon  a  favorable  decision  by  the  boards  and  bodies  having  these  cases 
in  hand,  without  process  of  law  or  the  judgment  of  the  courts. 
Whether  in  fact  such  a  purpose  had  been  formed  was  not  shown  at 
the  trial.  Of  the  many  expedients  resorted  to  by  those  in  office  to 
influence  the  action  of  the  triors  of  these  cases,  appellant  contends 
that  it  was  determined  by  him  and  his  colleagues,  or  at  least  some  of 
them,  to  have  largo  bodies  of  citizens  from  various  sections  of  the  State 
meet  at  Frankfort,  petitio.  the  Legislature  as  to  their  rights,  and 
remonstrate  against  reversing  the  will  of  the  apparent  majority,  ai 
expressed  by  the  official  returns;  thus  exhibiting  their  interest,  foal- 
ing, and  wishes,  in  the  hope  that  it  would  exert  a  moral  Influence 
upon  the  conduct  of  those  bodies.  One  notably  large  body  of  citizens 
was  brought  to  Frankfort  on  January  25,  1900,  through  the  efforts  of 
appellant  and  some  of  those  jointly  indicted  witL  him  In  this  case. 

Vol.  XIII— 33 


1 1    ' 


i 


; !  ■■  J 


lliUl 


■I  M^ » 


'll 


MIfn'' 


i 


5M 


AMERICAN  CRIMINAL  REPORTS. 


For  the  prosecution  It  la  claimed  that  thla  crowd  of  people  were 
brout'lit  to  the  capital  armed,  to  threaten,  Intimiaate,  and  coene 
the  attlon  of  the  Legislature,  ami,  if  neiPHsary  to  accomplish  that 
end,  to  kill  some  of  the  Democratic  members,  and  oapecially  Seuatur 
Ooebel.  The  fact  of  tho  coming  of  this  crowd,  varicualy  estiniatiil 
at  from  500  to  1,200  people,  and  Its  conduct,  and  its  piirpo.se  in  coniliii; 
to  I'^iankfort.  form  one  of  the  storm  centers  of  thl.s  case.  Sonic  day.s 
after  this  crowd,  or  the  great  majority  of  them,  had  returned  to  their 
homes,  and  before  the  hearing  of  any  of  the  contests  had  been  com- 
pleted by  the  committees  having  them  in  hand,  Senator  Goebel  was 
shot  from  ambush,  on  January  30,  1900,  as  he  was  passing  through 
tho  statohouse  square  on  his  way  to  tlie  capitoi  buildinp;,  where  thi 
Senate  was  In  sesnicn,  or  was  shortly  to  convene.  Prom  this  wound 
he  di(d  on  February  3d  following.  It  is  reasonably  certain  from 
the  proof  In  the  record  that  the  fatal  shot  came  either  from  tho 
executive  building,  or  from  its  immediate  vicinity.  That  building  was 
occupied  by  the  cfflcera  of  Governor,  Secretary  of  State,  Auditor, 
Treaaiirer,  Superintendent  of  Public  Instruction,  and  bur.aus  of  yomc 
tf  these  offices.  Appellant  had  been  upon  the  Republican  ticket  as 
the  nominee  of  that  party  for  the  office  of  Secretary  of  State.  ]lv 
liad  received  the  certificate  of  election,  and  had  bean  commissionc  I. 
and  was  in  office.  This  office  was  one  of  those  being  contested,  not 
before  the  Legislature,  but  before  the  State  board  of  election  com- 
mliisionurH.  It  wa.i  the  effort  of  the  prosecution  to  i)rove,  and  thee 
was  a  volume  of  testimony  introduced  to  the  effect,  that  this  fatal 
shot,  and  three  others  that  accompanied  it,  came  from  the  office  cf 
the  Secretary  of  State,  and  that,  although  appellant  was  not  at  the 
time  in  Frankfort,  yet  that  he  knew  of  and  Wiis  a  party  to  the  i)lot 
to  assassinate  Senator  Gcebel.  Within  a  few  minutes  after  the  shoot- 
iug  (wliether  5  or  10,  or  as  much  as  30,  there  is  .-^rcat  conflict  of 
testimony)  a  company  of  tlie  Stale  guard  appeared  upon  the  scene, 
and  were  so  stationed  as  to  have  under  their  protection  the  buildini-'s 
upon  the  capitcl  square,  and  especially  the  executive  building.  Also 
within  a  few  minutes  telegrams  were  sent  to  the  commanding  officers 
cf  the  State  guard,  calling  thei"  to  Frankfort.  During  that  day  and 
the  following  as  many  as  1,000  of  the  State  militia  were  under  anus 
in  Frankfort.  Immediately  after  the  shooting,  Gov.  Taylor  issued  i\ 
proclamation  calling  out  the  State  guard.  Great  excitement  prevailed 
in  the  city  of  Frankfort,  ind  fears  of  a  riot  were  entertained  by  the 
officials  on  the  statehouse  square,  and  others.  It  is  claimed.  Taylor 
i3  indicted  jointly  with  appellant  and  others  for  the  murder.  Other 
facts  bearing  on  the  case,  and  some  elaboration  of  those  outlined 
above,  may  be  necessary  further  along,  in  disposing  of  the  legal 
questions  presented  for  our  decision  by  this  appeal. 

THE   INDICTMENT. 

On  the  former  appeal  of  this  case  the  sufficiency  of  the  Indictment 
was  carefully  considered  by  the  court,  and  we  were  then  of  the 
opinion,  and  are  now,  that  it  is  sufficient  in  form  and  substance.    A 


POWERS  V.  COMMONWEALTH. 


515 


further  discussion  of  that  point  la  not  deemed  necesHary.    See  Powers 
V.  Cum.,  110  Ky.  J8(j,  22  Ky.  L.  U.  1807,  Ul  S.  W.  7^5.  53  L.  R.  A.  245. 

Allll'AVlT    TO    IlKgLIIlK    TlIK    CIUCIIIT    JLIHIK    TO    VACATK    THE    lllCXCII. 

I'lKJii  the  uotluij  ol'  record  lu  the  Circuit  Court  of  tho  filing  of  the 
manil;uo  of  this  court,  on  the  former  appeal,  appellant  filed  an  affidavit 
to  rcciiilro  the  Circuit  Judge  to  vacato  the  bench,  and  entered  hla 
niGtioii  to  that  cl'l'e;t,  which  was  overruled.  The  judge  pre.shleil  at 
tho  irlul.  The  suIUclency  of  that  allldavlt  Is  now  n  queatlon  on  this 
appeal. 

Whlio  at  the  common  law  the  Judge  was  not  disqualified  from 
Bitting  lu  any  case,  only  when  he  was  personally  intorestcu  In  the 
buIjJoc  (matter  or  result  of  a  litigation,  or  was  related  to  tlioKc  so 
Iritero;:!  d,  by  btutute  in  this  State  a  matorlally  different  rule  has 
been  adopted.  The  present  statute  on  this  subject  (section  9G8,  Ky. 
St.)  provides:  "When,  from  any  cnuHo,  the  judge  of  the  Circuit  Court 
fails  to  attend,  or  being  lu  attendance,  can  not  properly  preside  In 
an  action,  proceeding  or  proaecutlon,  pending  In  said  court,  or  If 
cither  party  shall  file  with  the  clerk  of  the  court  his  affidavit  that  the 
judge  will  not  afford  him  a  fair  and  Impartial  trial,  or  will  not 
Impartially  decide  an  application  for  a  change  of  venue,  the  parties, 
by  ameement,  may  select  one  of  the  attorneys  of  the  court  to  preside 
on  tlio  trial,  or  hear  tlie  application,  or  hold  the  court  for  the  occa- 
sion; and  on  their  failure  to  agree  upon  an  attorney,  the  attorneys 
i)f  tl.c  court  who  are  jiresent  and  not  Interested,  nor  employed  In  the 
cause,  idiall  elect  an  attorney  of  the  court  then  In  attendance,  having 
Ihe  (iiialificatlons  of  a  Circuit  judge,  to  hold  the  court  lor  the  occa- 
sion, wlio  shall  preside  accordingly;  and  the  judge  so  selected  shall 
l)re.si'lo  In  all  cases  called  during  the  term  in  the  absence  of  the 
regular  judge,  or  In  which  he  can  not  preside,  except  in  those  cases 
in  wiiich  the  special  judge  can  not  properly  preside.  The  election 
shall  be  held  by  the  clerk,  and  In  case  of  a  tie,  he  shall  give  the 
casting  vote.  The  peison  elected  shall,  during  the  period  that  he 
acts,  have  all  the  powers  and  be  subject  to  all  the  responsibilities  of  a 
Ciiciiil  judge."  The  rulings  of  the  trial  court  on  this  motion  is  one 
01'  the  principal  grounds  for  reversal  relied  upon  In  the  argument. 
CJuesiions  of  this  nature  are  always  unpleasant.  By  law  they  must 
fir.st  be  addressed  to  the  trial  Judge  whom  they  affect.  The  anomaly 
is  there  presented  of  one  sitting  in  judgment  upon  the  trial  of  ques- 
tioHH  involving,  if  not  his  official  Integrity,  certainly  his  official  im- 
l)aniality.  He  Is  requlied  to  pass  ui)on  them;  that  Is,  upon  their 
lesal  sufficiency,  not  upon  the  truth  of  their  statements.  From  his 
judmnent  an  appeal  lies.  The  discharge  of  this  duty  is  necessarily 
both  delicate  and  difficult.  That  the  sufficiency  of  the  aflldavit  in  this 
case  may  be  accurately  tested,  we  will  undertake  a  review  of  the  state 
of  the  law  of  this  State  on  that  subject. 

The  common-law  rule,  formerly  In  effect  here,  has  been  stated. 
The  first  enlargement  of  the  right  of  the  litigant  In  this  respect  was 
by  the  statute  of  1815,  found  in  2  More'.iead  &  B.  Ky.  St.  Iu21,  from 
which   we  quote:     "Br   It  enacted   by   the  General   Assembly   of  the 


I  ( 


I"' 


';    ! 


i  '  ; 


I    I 


't. 

s  a  t 


111 


ill 


¥1 


il  '\ 


S  ii 

r  i! 


i-.i 


516 


AMERICAN  CRIMINAL  REPORTS. 


Commonwealth  of  Kentucky,  thai  all  suits  (a)  coRnizable  In  any  ot 
the  Circuit  Courts  of  this  Corimonwealth,  where  either  of  the  parties 
shall  conceive  that  he,  she  cr  they  will  not  receive  a  fair  trial  in  tlie 
court  where  such  suit  is  pending,  owing  to  the  interest  or  prejudie 
of  any  judge  or  judges  of  the  said  court,  or  the  judges  will  not  sit, 
or  to  the  interest  or  prejudice  of  the  clerk,  Sheriff  or  Coroner,  where 
the  Sheriff  or  Coroner  is  a  party,  or  to  the  undue  influence  of  his, 
her  or  their  adversary  or  adversaries,  or  to  the  odium  which  attends 
the  said  party,  or  that  his,  her  or  their  cause  of  action  or  defeiKP, 
though  legal,  is  odious,  it  shall  be  lawful  for  the  party  so  suspecting 
he,  she  or  they  will  not  receive  justice  in  the  court  then  sustaining  tlu; 
said  suit,  owing  to  the  said  causes,  or  any  of  them,  at  any  time  to 
petition  a  Circuit  judge,  or  the  two  assistant  judges  of  the  Ciroiiit 
Courts  of  this  Commonwealth,  .  .  .  which  petition  shall  distinct  Iv 
set  forth  the  cause  or  causes  why  such  fear  is  sustained,  and  bj 
supported  by  the  affidavit  of  the  petitioner  or  petitioners."  It  was 
made  the  duty  of  the  Circuit  judge  to  whom  such  petition  was  pre- 
sented, supported  by  the  affidavits  required  by  the  statute,  to  remove 
the  cause  by  changing  its  venue  to  some  other  circuit.  This  api)li(a- 
tion  was  not  considered  by  the  judge  against  whom  the  objections 
were  made,  but  by  another  circuit  judge.  The  only  relief  allowed  to 
the  litigant  when  the  judge  before  whom  his  case  was  triable  wns 
"interested  or  prejudiced"  was  to  obtain  a  change  of  venue  from  liis 
district  in  the  manner  i)rovlded  in  this  statute.  The  law  continued 
so,  and  without  an  interruption  b>  this  court,  so  far  as  we  aro 
advised,  until  the  adoption  of  the  Constitution  of  18.J0.  The  fourth 
article  of  that  instrument  was  devoted  to  the  judicial  department  of 
the  State  Government.  The  twenty-eighth  section  of  that  article 
provided:  'The  general  assembly  shall  provide  by  law  ,for  hoUHn.^ 
circuit  courts,  when,  from  any  cause,  the  judge  shall  fall  to  attend, 
or,  if  in  attendance,  cannot  proi)erly  preside."  The  Revised  Statutes, 
which  became  effective  on  July  ],  1852,  carrying  into  effect  the  provi- 
.  sions  of  the  Constitution  recently  adopted,  and,  compiling  the  statute 
law  of  the  State  into  one  system,  by  section  1,  art.  113,  c.  27,  provided: 
"When  from  any  cause,  the  judge  of  the  Circuit  Court  fails  to  attend, 
or,  if  In  attendance,  cannot  properly  preside  in  a  cause  or  causes  pend- 
ing in  such  court,  the  attorneys  of  the  court  who  are  present,  sluill 
select  one  of  its  members  then  in  attendance,  to  hold  the  court  for 
the  occasion,  who  shall  accordingly  preside  and  adjudicate."  Oilier 
sections  regulated  the  manner  of  the  selection  and  the  compensation, 
etc.,  of  the  special  judges.  By  a  subsequent  amendment,  approved 
March  9,  1854,  attorneys  for  the  parties  to  the  litigation  in  which  the 
special  judge  was  to  be  selected  were  disqualified  from  voting  for 
such  special  judge.  By  section  10,  c.  13,  Rev.  St.,  a  defendant  in  a 
criminal  or  penal  prosecution,  by  filing  his  affidavit  with  the  clerlt, 
stating  "that  he  verily  believes  the  judge  of  the  court  where  the  same 
is  pending  will  not  afford  him  a  fair  and  impartial  trial,"  could  have 
a  substitute,  to  be  selected  by  the  members  of  the  bar,  who  should 
try  the  case,  or  the  motion  for  change  of  venue;    and,  if  the  defendant 


e  In  any  of 

the  parties 
trial  in  tlie 
)r  prejudice 
will  not  sit, 
oner,  where 
mce  of  his, 
lich  attends 

or  defencp, 
)  suspecting; 
staining  tlie 
ny  time  to 
the  Cirriiit 
II  distinct ;v 
ed,  and  bo 
3."  It  was 
»n  was  pr.-- 

to  remove 
his  applica- 

objections 

allowed  to 
triable  was 
e  from  his 

continued 
as  we  are 
The  fourth 
lartment  of 
hat  article 
'or  holding 

to  attend. 
d  Statutes, 
.  the  provi- 
the  statute 
,  proviiled: 
I  to  attend, 
luses  jiend- 
isent,  shall 

court  for 
e."  Oihcr 
ipensation, 
,  approved 
which  the 
voting  for 
idant  in  a 
the  clerk, 
!  the  Fame 
;ould  have 
ho  should 
defendant 


POWERS  V.  COMMONWEALTH. 


517 


lllcd  like  affidavit  against  the  substitute,  the  clerk  of  the  court  was 
rccpiired  to  select  "three  discreet,  impartial  housekeepers,"  to  try, 
under  their  oaths,  the  question  of  the  substitute's  impartiality. 

The  first  adjudicated  case  construing  the  right  of  a  litigant  to 
require  the  regular  judge  to  vacate  the  bench  upon  the  ground  of  his 
bias,  for  other  cause  than  personal  interest  in  the  result  of  the  litiga- 
tion, or  of  kinship  to  some  one  so  interested,  Is  the  celebrated  case 
of  Turner  v.  Com,,  2  Mete.  C19,  decided  in  1859.  From  iae  array  of 
eminent  counsel  a))pearing  In  the  case,  and  the  high  professional 
standing  of  the  ai)pellant,  he  having  been  a  celebrated  practitioner  as 
an  attorney  at  law  of  his  day,  the  case  was  doubtless  thoroughly 
presented  and  carefully  considered.  This  court  held  that  the  provisions 
of  the  Constitution,  supra,  and  of  the  Revised  Statutes  (chaptei  27, 
art.  115),  apidied  to  a  case  when  the  personal  hostility  of  the- trial  judge 
to  one  of  the  litigants  made  It  lmi)roper  for  him  to  preside  in  the 
'  cause.  The  Court  said:  "The  Legislature  certainly  did  not  intend 
that  any  cause,  however  trivial  or  unimportant,  should  operate  to  dis- 
qualify a  Circuit  judge,  or  render  it  improper  that  he  should  preside  in 
a  case,  but  obviously  meant  that  such  cause  should  be  a  legal  and 
substantial  one."  The  affidavit  in  that  case  disclosed  the  following 
objoitions  to  the  Circuit  judge:  "(1)  That  he  was  personally  hostile 
to  api)ellant,  and  had  been  so  for  years,  and  that,  as  appellant  believed, 
he  could  not,  because  of  such  hostility,  do  him  justice  upon  the  trial 
of  said  case;  and  (2)  that  he  had  prejudged  more  than  one  ques- 
tion in  the  case  to  appellant's  prejudice,  and  that  wrongfully."  The 
court  held:  "Our  conclusion,  therefore,  is  that  they  did  constitute 
ample  cause,  rendering  it  improper  for  the  Circuit  judge  to  preside  in 
the  case,  or  to  make  any  order  therein,  after  the  objections  were 
lii^sented,  further  than  was  necessary  to  the  selection  of  a  special 
judge  in  the  manner  prescribed  by  law,  who  could  preside  and  dis- 
pose of  the  case."  The  court  in  that  case  reached  its  conclusion  as 
to  the  proper  meaning  of  the  general  term  "any  cause,"  employed  in 
the  Constitution  and  statutes,  by  referring  to  the  statutes,  supra,  con- 
rorning  changes  of  venue,  and  applying  the  causes  therein  enumerated 
a;;  those  evidently  contemi)lated  by  the  convention  and  legislature 
when  they  used  the  language  under  consideration. 

Thus  the  law  remained  as  expressed  In  the  sections  of  the  Con- 
stitution and  Revised  Statutes  above  quoted,  as  aided  by  the  inter- 
pretation by  the  court  in  the  case  of  Turner  v.  Com.,  supra,  until  the 
ailoiition  of  the  General  Statutes  in  1873.  Section  1  of  article  7  of 
chapter  28  of  that  revision  provides:  "When  from  any  cause  the 
judge  of  the  Circuit  court  fails  to  attend,  or,  being  in  attendance, 
can  not  properly  preside  in  an  action,  special  proceeding,  or  prosecu- 
tion pending  in  said  court,  or  if  either  party  shall  file  with  the  clerk 
of  the  court  his  affidavit  that  the  judge  will  not  afford  him  a  fair 
and  Impartial  trial,  the  parties  by  agreement  may  select  one  of  the 
attorneys  of  the  court  to  preside  on  the  trial  and  hold  the  court  for 
the  occasion;  and  on  their  failtire  to  agree  upon  an  attorney  to  try 
the  cause,  the  attorneys  of  the  court  who  are  present  and  not  Inter- 


Mi: 


1;  .  ! 


!i 


:  Ii  f 


t.  .' 


W 


11  il^ 


irii! 


Hill  J 


w 


518 


AMERICAN  CRIMINAL  REPORTS. 


ested,  nor  employed  in  the  cause,  shall  elect  an  attorney  of  the  court 
then  in  attendance,  having  the  qualifications  of  a  Circuit  judge,  to 
hold  the  court  for  the  occasion,  who  shall  preside  accordingly."  The 
practice  under  that  section  seems  to  have  prevailed,  until  iss;),  of 
filing  an  affidavit  of  the  litigant,  in  which  the  affiant  stated,  in  tlie 
tern:s  of  the  statute,  "that  the  judge  will  not  ?.fford  hi  •  n  lair  ;iiul 
impartial  trial."    The  sufficiency  of  such  an  affiil  >  ,>d  (ouseqneatly 

the  correct  interpretation  of  the  General  Statutes  .aontionei!.  was  |>ie- 
Eented  to  this  court  for  determination  in  the  case  of  Insurance  Co.  \i. 
Lanlram,  88  Ky.  433,  10  Ky.  L.  R.  1039,  11  S.  W.  3G7,  592,  drri,!e>l  at 
the  January  term,  1889.  The  court  held  that  it  Avas  tiect  -a  in 
such  an  affidavit  that  "the  fact  or  facts  upon  which  the  belief  ihat  ilie 
judge  will  not  give  the  litigant  a  fair  trial  should  and  must  be  statotl 
in  the  affidavit,  and  they  must  he  of  such  a  character  as  shall  pic- 
vent  the  judge  from  properly  presiding  in  the  case."  Tbe  court 
however,  said  further:  "We  do  not  mean  to  say  the  st.tenionl  of  the 
ground  for  belief  must  establish,  if  true,  that  the  judge  ''^  .-!  corrapt 
official,  but  we  do  mean  to  adjudge  that  such  causes,  and  those  of  a 
like  character,  as  have  been  noticed,  are  not  sufficient,  and  tluie 
must  be  some  fact  stated,  such  as  personal  hostility  of  such  a  cli;ir- 
acter,  if  that  ground  is  relied  on,  as  would  prevent  an  offirial  of 
personal  integrity  from  presiding  in  the  case;  and  of  the  sufficiiMn  .v 
of  the  affidavit  the  trial  judge  must  determine,  and  the  question,  if 
improperly  decided,  can  be  raised  in  this  court,  as  in  other  case-,  if 
an  appeal  is  taken."  In  that  case  the  affidavit  against  the  jud-je  was 
filed  after  many  preliminary  motions  had  been  passed  upon,  and  sonio 
cr  all  of  the  issues  joined  by  the  pleadings,  and  in  all  probability 
after  the  Circuit  judge  had  indicated  by  his  rulings  in  these  matters 
the  inclination  of  his  mind  as  to  the  law  ai)plicable  to  the  case  on 
trial.  From  the  illustrations  used  by  the  court  in  its  opinion,  it  may 
be  inferred  that  litigants  were  abusing  the  ijrivile^s  accorded  by  tins 
statute  after  they  had  tested  the  trial  court's  vlev.s  concerning;  tlie 
law  of  their  cases  by  ])reliminary  motion'?,  la  the  case  of  Titrr.cr  r. 
Com,  the  court  had  under  consideration  a  statute  using  the  term  "wIumi 
from  any  cause"  the  judge  could  not  i)roperlv  preside,  etc.  Tlicy 
found  that  the  Legislature  must  have  Intended  that  the  causes  f(a' 
which  the  judge  would  be  required  to  vacate  the  bench  was  one  at 
those  provided  for  a  change  of  venue.  In  the  General  Statutes,  hew- 
ever,  not  only  is  the  same  language  used  as  wan  in  the  Rovisoil 
Statutes,  but  there  was  added  these  words,  "or  if  either  party  shall 
file  with  the  clerk  of  the  court  his  affidavit  that  the  judge  will  uat 
afford  him  a  fair  and  impartial  trial."  The  construction  given  this 
section  of  the  statute  in  the  hnndram  Case  was  a  strict  one.  It  was 
the  ojilnion  of  the  court  that  the  Legislature  could  not  have  con- 
lemplated  putting  it  in  the  power  of  the  litigant  to  virtually  impe'tch 
the  re.^ular  judge  without  cause  or  reason;  that  it  was  a  right  of 
the  other  paity  to  the  litigation  to  have  his  case  tried  by  the  reg'ilar 
judge,  unless  for  proper  and  sufficient  reasons  he  was  disqualiricii. 
In  Vance  v.  Field,  89  Ky.  173,  It  Ky.  L.  R.  388,  12  S.  \V.  190,  decided 


POWERS  V.  COMMONWEALTH. 


519 


at  the  September  term,  1889,  the  sufficiency  of  a  similar  affidavit  was 
uuder  consideration  again.  Insurance  Co.  v.  Landram,  supra,  was 
followed  and  approved,  with  this  explanation  or  modification:  "It  was 
net  intended  to  there  decide  the  judge  of  the  court  has  the  right  to 
l)ut  in  issue  or  call  in  question  the  truth  of  the  statement  of  facts 
contained  in  the  affidavit,  but  simply  that  there  ranst  be  in  the  affidavit 
such  fact  or  ground  for  belief  stated  as  would  prevent  an  official  of 
Ijersonal  integrity  from  presiding  in  the  ca:o,  or  as  would  prevent 
him  affording  a  fair  and  impartial  trial;  and,  when  such  affidavit  is 
filed,  the  statements  of  fact ,  it  contains,  and  of  the  belief  founded 
thereon,  must  be  taken  as  true.  Nor  was  it  intended  by  the  opinion 
to  decide  that  a  party  may  not  file  an  affidavit  based  upon  facts  dis- 
covered after  the  issues  were  formed."  Massie  v.  Com.,  93  Ky.  ."i88, 
II  Ky.  L.  R.  5G4,  20  J.  W.  704,  was  decided  September  term,  1S92,-— 
a  case  which,  as  we  remember,  came  to  this  court  on  appeal  a  numbor 
cf  times.  The  sole  question  involved  in  that  appeal  was  the  sufficiency 
of  the  affidavit  filed  by  the  accuscl  against  the  crial  judges  sitting  in 
the  case.  In  reversing  the  judgment  for  the  second  time,  the  court 
stated  the  contents  of  the  affidavit  and  its  conclusions  thus:  "Ai)pel- 
li'.iit's  affidavit  discloses  the  fact  tliat  the  judge,  after  the  first  trial 
of  his  case,  criticised  to  divers  persons  those  of  the  jury  that  favored 
the  appellant;  that  he  denounced  the  appellant's  case  as  the  most 
bloodthirsty  that  was  ever  committed;  that  the  judge  knows  that 
there  is  a  rabid  and  unhealthy  feeling  against  him  in  Owen  county; 
and  that  the  judge,  in  the  presence  of  crowds,  expresses,  during  can- 
vasses for  the  various  offices,  the  circuit  judgeship  being  one,  his 
opinion  as  to  the  affiant's  guilt, — and  the  judge  so  rules  as  to  satisfy 
the  bloodthirsty  crowds;  that  he  is  personally  hostile  to  the  affiant." 
And  although  there  was  no  error  in  the  record  in  any  other  part  of 
the  trial,  so  far  as  could  be  discovered  by  the  court,  this  court,  in 
a  most  vigoroiis  and  characteristic  opinion  by  Judge  Bennett,  held 
that,  where  such  facts  are  made  to  appear  by  proper  affidavits,  the 
judge  should  then  vacate,  and  it  is  reversible  error  if  he  does  not. 
In  the  case  of  Schmidt  v.  MitiheU,  101  Ky.  570,  19  Ky.  L.  R.  7G:l,  41 
S.  W.  929,  72  Am.  St.  Rep.  427,  the  court  quoted  approvingly  from 
Insurance  Co.  v.  Landram,  supra,  which  case  was  also  cpproved  in  the 
Massie  Case,  above  cited.  In  the  case  of  Hchmidt  v.  Mitchell  the  only 
expression  of  the  court  as  to  the  sufficiency  of  the  affidavit  there,  or 
IV-  to  the  averments  of  the  affidavit,  was  as  follows:  "A  careful  exam- 
ination of  the  affidavit  filed  in  this  case  shows  that  the  averments  are 
based  almost  entirely  upon  hearr;ay,  and  that  it  is  not  drav.n  in 
conformity  with  the  rule  laid  down  in  the  Landram  Case,  supra.  We 
do  not  feel  authorized  to  hold  that,  in  deciding  this  afn.lavit  to  be 
Insufficient,  there  was  an  abuse  of  judicial  discretion  by  the  trial  court." 
Counsel  for  appellee  have  obligingly  copied  into  their  brief,  as  an 
ai)pcndlx,  what  they  say  is,  and  what  we  assume  to  ba,  a  copy  of  the 
affidavit  referred  to  by  the  court  in  the  language  just  quottsd.  The 
other  facts  appearing  in  the  Schmidt  Case  are  not  shown  in  the  opinion 
or  in  the  affidavit,  further  than  was  necessary  to  decide  the  other 


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AMERICAN  CRIMINAL  REPORTS. 


questions  disposed  of  by  the  court.  It  would  appear  that  this  affidavit 
was  filed  long  after  the  court  had  ruled  upon  many  of  the  questions 
presented  by  various  motions  and  pleadings,  and  had  thus  indicated 
pretty  conclusively  the  views  of  the  law  applicable  to  the-  case.  It 
should  be  borne  in  mind,  too,  that  Schmidt  v.  Mitchell  was  in  equity, 
where  every  ruling  of  the  chancellor,  and  his  every  finding  of  fact*, 
were  subject  to  review  and  reversal  on  appeal,  and  where,  consequently, 
his  bias,  if  it  existed,  was  comparatively  harmless, — not  affording  the 
opportunities  for  irremedial  wrong  so  forcibly  expressed  in  the  Massic 
Case. 

It  is  insisted  for  appellee  that  the  case  of  Schmidt  v.  Mitchell  vir- 
tually overrules  Massie  v.  Com.,  that  Mass:c  v.  Com.  had  virtually 
overruled  Insurance  Co.  v.  Landram,  and  that  Insurance  Co.  v.  Lan- 
dram  was  a  material  departure  from,  if  not  in  conflict  with  Turner  v. 
Com.  As  a  matter  of  fact,  hisurance  Co.  v.  Landram  quotes  approv- 
ingly and  relies  upon  Turner  v.  Com.  It  does  seem  to  be  an  exten- 
sion, or  at  least  an  elaboration,  of  the  principles  announced  in  Turner 
V.  Cum.  Massie  v.  Coin,  explicitly  cites  and  relies  upon  and  approves 
Insurance  Co.  v.  Landram.  It  cannot  be  said  to  overrule  that  opin- 
ion. Vance  v.  Field  seems  to  modify,  or  at  least  to  explain,  Insuranvc 
Co.  V.  Landram.  Such  an  important  line  of  cases,  apparently  so  thor- 
oughly and  carefully  considered,  will  not  be  held  to  be  overruled  by 
an  opinion  ccntaining  such  general  terms  as  are  in  Schmidt  v.  Mitch- 
ell. The  better  course,  and  we  believe  the  true  one,  is  to  read  all 
these  opinions  and  statutes  together,  in  the  effort  to  arrive  at  what 
has  heretofore  been  held  to  be,  and  what  in  accordance  with  such  help- 
ings is  now,  the  law  of  this  State  upon  this  subject. 

In  addition  to  the  opinion  above  mentioned,  the  case  of  Given.i  v. 
Craicshato,  decided  March  17,  1900,  reported  in  21  Ky.  L.  II.  1C18.  H,") 
S.  W.  905,  is  applicable  and  clearly  in  point.  In  that  case  the  affida- 
vit against  the  judge,  the  Hcnorable  M.  J.  Moss,  of  the  Bell  cin  nit, 
was  that  the  said  judge  would  not  afford  the  affiant  a  fair  and  im- 
partial trial,  because  of  their  political  differences,  and  because  the 
afllnnt  Lad  voted  against  the  judge  and  for  his  opponent,  and  tooiv 
an  active  part  in  the  election,  and  since  the  election  the  judge  had 
threatened  that  all  who  had  bolted  from  his  party  in  that  election 
would  have  a  hard  road  to  travel,  etc.  The  case  of  Insurance  Co.  v. 
Landram  was  again  referred  to  and  relied  upon  in  tha  opinion,  and 
while  it  was  in  this  opinion  conceded  that  the  statute  simply  required 
the  affiant  to  state  that  he  does  not  believe  the  judge  will  afford  him 
a  fair  and  impartial  trial,  yet  the  additional  facts  required  by  the 
Landram  Case,  supra,  to  be  Etated,  were  held  to  be  necessary.  Said 
the  court:  "We  do  not  think  that  it  is  necessary  in  all  cases,  or  at 
all,  in  fact,  that  the  affiant  should  state  facts  which  tend  to  show 
that  the  judge  was  intentionally  unfair,  or  that  he  would  knowingly 
disregard  the  law  or  the  evidence,  to  the  prejudice  of  the  affiant.  It 
may,  however,  sometimes  happen  that  conditions  or  circumstances 
are  such  that  the  perfectly  honest  and  competent  judge  would  in  fact 


POWERS  V.  COMMONWEALTH. 


521 


mm 


be  unable  to  afford  a  litigant  such  an  absolutely  impartinl  trial  as  the 
law  intends  and  requires.  In  the  case  under  consideration  the  facts 
stated  in  the  affidavit  do  not  import  intentional  unfairness  or  wrong, 
but,  if  true,  they  might  create  an  impression  upon  the  affiant  that  the 
judge,  however  honest  and  pure  his  intentions  may  be,  had  become 
so  prejudiced  that,  imperceptibly  to  himself,  he  would  be  unable  to 
give  a  fair  and  impartial  trial."  The  court  held  the  refusal  of  the 
judge  to  vacate  the  bench  was  error,  and  the  judgment  was  conse- 
quently  reversed. 

^Villl  the  wisdom  of  the  enactment  of  such  a  statute  we  have  noth- 
ing to  do.  That  is  a  question  solely  within  the  province  of  the  law- 
making body  of  Government.  Nor  can  the  fact  that  some  litigants 
abuse  this  privilege  cf  the  statute,  and  do  so  to  the  great  injustice  of 
the  trial  judges  and  the  adverse  party,  influence  a  fair  interpretation 
to  the  law  as  it  is.  Many  statutes  are  abused  but  we  never  feel 
justified  in  declaring  that  they  are  inoperative  because  of  that  fact. 
The  Leg'slaturc  doubtless  saw,  and,  in  the  experience  of  many  years 
that  this  law  had  been  upon  the  statute  books  of  this  Commonwealth, 
may  have  been  confirmed  in  the  belief,  that  it  was  necessary  to  the 
just  protection  of  the  rights  of  litigants,  and  to  an  absolutely  fair 
and  impartial  administration  of  justice  through  the  courts,  that  such 
statute  should  be  in  existence;  that  such  a  right  should  be  available 
to  the  litigant,  where  the  facts  justified  its  employment.  I'^roui  this 
statute,  and  the  decisions  quoted  from,  the  law  may  be  gatht,'red  to 
be,  if  a  litigant  files  his  affidavit,  stating  that  the  judge  will  not  give 
him  a  fair  and  impartial  trial,  and  states  therein  the  basis  of  such 
belief,  and  if  the  facts  so  stated  are  such  "as  would  prevent  an  official 
of  personal  integrity  from  presiding  in  the  case,  or  as  would  prevent 
him  affording  a  fair  and  impartial  trial,"  then  the  truth  of  the  state- 
ment of  the  facts  as  set  out  in  the  affidavit  must  be  assumed,  for  it 
cannot  be  traversed  or  tried. 

Applying  the  law  thus  epitomized  to  the  affidavit  in  quesUon  in 
this  case,  we  find  that  appellant  in  that  affidavit  charged,  in  suljstance 
and  effect,  as  follows,  so  far  as  the  facts  charged  were  material  or 
rchnant:  That  the  trial  judge  was  of  the  same  political  faith  as  the 
decedent,  William  Gocbel,  was  his  intimate  personal  friend,  and  in 
close  sympathy  with  him  in  his  contest  for  governor,  and  that  by 
reason  of  those  circumstances,  and  the  intense  iwlltical  excitement 
existing  at  the  time  of  the  assassination  of  Senator  (loel)el,  the  judge 
had  conceived  and  entertained  a  feeling  of  hostility  and  |)n'judice 
against  the  accused  that  would  prevent  his  affording  a  fair  aUil  im- 
l)arlial  trial  of  the  case.  Numerous  circuni  tances  are  recited,  al- 
leged to  have  occurred  on  the  former  trial  of  the  case,  indicating  the 
existence  of  the  feeling  alleged.  Among  other  matters  specillcally 
charged  is  the  one  of  Mie  manner  of  selecting  the  jury,  .so  as,  it  is 
staled,  none  but  Intense  partisans,  in  sympathy  with  the  prosecu- 
lioii,  were  selected,  "said  judge  well  knowing  their  bias  and  prejudice 
agiiinst  defendant  [i.  e.,  the  jury  commissioners],  and  believing  they 


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AMERICAN  CRIMINAL  REPORTS. 


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would  be  governed  by  their  political  prejudice  and  hostility  to  de- 
fendant In  the  selection  of  names  for  said  wheel."    In  other  woi<ls, 
the  affidavit  charges  that  the  trial  judge,  on  account  of  an  intimate 
friendship   for   the   murdered    man,    a   partiality   for   his  cause  and 
course,   and   on  account  of  his   hostility   and   prejudice  agaln.st  tlio 
accused,  would  not  afford  or  allow  him  a  fair  and  Impartial  trial,  an  I 
in  pursuance  of  such  hostility  had  actually  taUeu  such  steps  as  would 
result  In  his  being  tried  by  a  jury  prejudiced  against  him,  and  se- 
lected  for  that  purpose.    The  facts  upon  which  the  alleged  hosti:it 
was  based,  and  its  causes,   are  set  out  with  much  particularity,    if 
the  facts  alleged  in  the  affidavit  are  true,  they  clearly  bring  tlie  case 
up  to  the  requirements  heretofore  laid  down  by  this  court  in  making 
out  a  sufficient  case  under  this  statute.    We  do  not  mean  to  be  under- 
stood as  saying  that  a  judge  of  one  political  faith  may  not  proi-iiiy 
try  the  case  of  a  litigant  of  a  diffaront   political   faith,  though  Uvj 
question  involved  was  one  purely  political.     Nor  is  the  mere  fart  cf 
a   difference   in   political   belief  or   affiliation   a  legal   ground   for  c'j- 
jectlng  to  a  trial  judge.    We  do  not  believe   (such  has  not  been  our 
observation    or    experience,    nor    has    such    been    the    history    of   the 
judiciary  cf  this  State)   that  the  judges'  political  views  control  their 
decisions  upon  matters  of  law  before  them  for  adjudication.     It  will 
be  a  most  calamitous  day  for  the  Commonwealth  when  such  conies 
to  be  the  case.     But  cases  may  arise  (it  is  easy  to  conceive  of  them) 
where   a   judge   may  become  disqualified   in   fact  and   in   law,   by  a:i 
undue  bias,  from  properly  presiding  in  a  case  that  has  grown  out  of  a 
political    controversy,   as   well   as   any   other   controversy.     It  was  so 
held  by  thi«  "ourt,  and  explicitly  applied,  under  allegations  no  strnn.^c;', 
if  as  strong,  nor  more  definite,  than  here,  in  the  ca^e  of  Givcns  v. 
Cratvshaw.  su2)ra.     If  the  fact  be  that  the  judge  is  biased  or  prejudiced 
against  a  litigant  because  of  politics,  it  would  seem  to  disqualify  him 
as  certainly  and  completely  as  if  he  were  prejudiced  or  biased  against 
him  for  any  other  reason.    The  objection  is  a  state  of  bias  which  de- 
stroys  Impartiality,    whatever   may    be   its   cause.     Nor   does   such   a 
state  of  case  necessarily  lmi)b'  corruption  on  the  port  of  the  judge, 
or  that  he  would   knowingly  disregard  the  law  or  the  evidence.     A^ 
said   in  Givcas  v.   Crmcshaiv:    "It   may,  however,  sometimes   happen 
that  conditions  or  circumstances  are  such  that  the  perfectly  honest  and 
ccmpeicnt  jud.ge  would  in  fact  be  unable  to  afford  a  litigant  such  an 
absolutely  lnii)artial  trial  as  the  law  intends  and  requires." 

We  have  so  far  discussed  this  question,  as  all  the  authorities  quoted 
and  cited  require,  upon  the  hypothesis  that  the  facts  stated  in  the 
affidavit  nere  true.  We  are  far  from  intending  to  be  understood  as 
giving  our  assent  to  their  truthfulness.  It  would  be  both  imiirojur 
and  unjust  to  do  so.  Beside  the  legal  presumption  of  official  in- 
tegrity attaching,  the  long  and  distinguished  official  career  of  the 
learned  trial  judge  who  presided  in  this  case  would  arrest  the  I'udg- 
ment  and  comment  of  all  at  Ihe  point  where  the  law  limits  them 
as   necessary   functions   in   trying   the   exact   question    Involved.    By 


POWERS  V.  COMMONWEALTH. 


523 


express  declaration  of  law,  the  Judge  cannot  controvert  the  statements 
cf  the  affidavit.  In  argument,  counsel  for  appellee  assert  that  the 
affidavit  is  antrue.  In  the  Turner  Case  and  in  Vance  v.  Field  and  in 
Givens  v.  Crawshaw,  cited,  the  trial  judgj  in  ecicli  instance  con- 
troverted of  record  the  truthfulness  of  the  affidavits.  But  in  each 
instance,  also,  their  sufficiency  was  tested  by  their  own  averments, 
and  without  regard  to  the  judge's  traverse.  As  a  rule,  prejudi'-e  is 
honest,  and  bias  may  be  innocent.  In  the  very  nature  of  the  case, 
therefore.  It  Is  extremely  difficult,  if  not  impossible,  for  the  mind  so 
iiffectod  to  realize,  much  loss  to  judicially  try.  Its  own  Impartiality. 
It  may  also  be  true  that  the  trial  judge,  selected  by  his  constituents 
])resunia!)ly  upon  their  faith  in  his  probity,  whose  official  intei^rity, 
as  it  wcro,  is  thus  assailed  by  a  litigant  whom  he  may  not  know, 
and  for  whom  he  may  have  no  personal  regard  one  way  or  the  other, 
may  be  compelled  to  try  the  sufficiency  of  such  allegations  in  an 
affi<lavit  which,  in  his  conscience,  he  may  know  to  be  unfounded  and- 
utterly  false.  The  arguments  here  naturally  first  coming  to  mind, 
and.  Indeed,  those  principally  employed  by  appeilee  in  this  case,  go  to 
the  rpiestion  of  the  wisdom  or  propriety  of  the  statute.  If  the  court 
felt  at  lii)erty  to  reconsider  the  rule  laid  down  in  all  the  otlier  cases 
cited  (which  we  do  not),  we  might  feel  persuaded  that  it  were  best 
to  rest  such  questions  upon  the  express  words  of  the  statute,  leaving 
all  questions  of  propriety,  probable  abuse,  and  overbalancing  benefit 
to  the  consideration  of  the  Legislature,  where  they  belong.  We  con- 
rliule  that  the  trial  court  erred  in  not  vacating  the  bench  upon  the 
motion  and  affidavit  discussed. 

Ui:MX(iS   ox    ADMIXriNO    AND  BEFUSING   EVIDENCE. 

As  the  learned  trial  judge  pursued  in  the  main  a  consistent  course 
of  r\iling  on  the  relevancy  and  competency  of  evidence  offered,  it  is 
deemed  unnecessary  to  take  up  each  objection  separately,  and  to  pass 
uiion  it  specifically.  Instead,  examples  of  a  class  will  be  si-lccted, 
where  pi'acticable,  and  the  rulings  upon  the  retrial  will  be  made  to 
conform  to  the  line  suggested  in  this  opinion. 

As  has  been  stated,  it  was  the  effort  of  the  prosecution  to  prove  that 
the  large  party  of  men  who  came  to  Frankfort  January  25,  1900,  had 
as  their  purpose  the  intiinldiilion  of  the  Legislature  by  force  and 
violence,  which  would,  of  ( nurse,  have  been  unlawful,  and  that  it  was 
in  execution  of  this  purpose  that  Senator  Gocbel  was  shot  by  some 
iiioniber  of  that  party,  or  In-  some  per^on  acting  with  them.  It  was 
thcrefoiv  projjer  to  show  the  real  purpose  of  this  assemblage  of  peo- 
ple. In  order  to  do  this,  what  they  did  and  said  at  the  tine  was 
iclcvant.  Evidence  of  that  character  was  iiroperly  admitted  ])y  the 
trial  (-ourt.  This  crowd  was  gathered  mainly  from  the  sotitheastern 
l)art  of  the  state,  from  what  are  termed  "mountain  counties,"  the 
votes  (if  some  of  which  wee  particularly  the  subjer-t  of  the  ponding 
contests.  It  is  therefor  that  this  crowd  of  people  were  ■;«  .lerally 
siiokcn  of  as  "mountain  men"  or  "mountaineers."  It  was  in  ovidonce, 
also,  that  uumerous  men  from  substantially  the  same  section  had  been 


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524 


AMERICAN  CRIMINAL  REPORTS. 


at  Frankfort,  and  continued  to  be,  throughout  the  contest.  These 
latter  in  some  instances  were  not  shown  to  have  been  a  part  of  the 
large  crowd  of  the  25th  of  January. 

The  te.stimony  of  Eph  Lillard  as  to  an  occurrence  at  dinner  /at  the 
Board  of  Trade  Hotel  on  January  25th  when  one  of  these  puitius 
"sweetened  his  cofiee  with  a  forty-four,"  is  relevant,  if  the  par-sou 
testified  about  was  identified  as  one  of  those  who  came  in  the  crowd 
mentioned.  We  understand  this  witness  to  have  so  identified  his 
man,  in  which  event  the  testimony  was  properly  admitted.  In  otlicr 
words,  we  hold  that  statements  made  by  members  of  this  party  of 
January  25,  1900,  gotten  together  by  Powers,  or  by  others  under  him, 
cr  by  thoae  jointly  operating  with  him,  made  at  a  time  when  they 
were  acting  in  the  consummation  of  the  purpose  of  their  coming  to 
Franlifort,  or  made  in  the  furtherance  of  such  purpose,  and  of  ai  ts 
done  by  them,  when  they  are  identified,  not  necessarily  by  name  oi 
•  place  of  residence,  but,  as  a  matter  of  fact,  as  having  been  members 
of  such  party,  are  relevant.  This  observation,  of  course,  applies  to 
other  parties  that  were  procured  under  similar  circumstances;  it 
being  asserted  by  the  prosecution  that  there  were  one  or  two  other 
such. 

On  the  other  hand,  we  hold,  as  was  held  on  the  former  appeal,  that 
statements  made  by  unknown  and  unidentified  persons  at  Frankfort 
or  el.sewhcre,  or  even  by  persons  known  and  identified,  but  not 
charged  jointly  with  the  accused  in  the  perpetration  of  this  crime, 
where  such  persons  are  not  known  to  have  been  acting  with  the  ac- 
cused, or  some  of  those  jointly  indicted  with  him,  in  the  plot  to  as- 
sassinate Senator  Goebel,  or  to  do  violence  to  members  of  the  General 
Assembly  in  general,  are  not  competent  against  appellant.  The  .sluic- 
nients  and  acts  of  this  last  class  of  persons  must  be  held  to  be  their 
own  acts  alone.  The  whole  doctrine  of  allowing  the  acts  and  declara- 
tions of  a  conspirator  as  evidence  against  a  co-conspirator  is  based 
upon  the  theory  of  agency.  It  is  elementary  that  the  agent  may  not, 
by  a  mere  declaration  or  averment  out  of  court,  prove  his  a;;en;y, 
so  as  to  bind  the  reputed  principal.  Nor  can  recitations  nuulo  by 
such  agent  after  the  termination  of  the  agenc>,  or  while  not  engaged 
therein,  being  in  their  nature  historical  or  reminiscent  (that  Is, 
declarative  of  a  past  fact),  be  relevant  as  against  the  putative  princi- 
pal. His  declarations,  however,  made  in  the  prosecution  of  the  eater- 
prise  in  hand,  given  in  his  charge  by  his  i)rlnclpal,  are  regarded  some- 
what in  the  nature  of  the  res  yestae, — as  being  verbal  parts  of  what 
he  is  doing.  So  what  the  agent  says  In  furtherance  of  his  princi- 
pal's cause,  which  is  a  part  of  it,  and  to  help  it  along  to  a  consuni 
mation,  is  relevant.  All  the  authorities  agree  (those  cited  by  ai)- 
pellee  and  tho.se  by  appellant)  that  the  declarations  of  an  accom- 
plice, to  be  admissible  as  evidence  against  his  co-conspirator,  must  be 
such  either  as  to  j'orm  a  part  of  the  res  gestae,  or  be  in  furtherance 
of  the  (criminal  project.  Wright,  Cr.  Consp.  218,  etc.;  Spie.r  Case,  122 
111.  1,  12  N.  E.  SG5,  17  N.  E.  898,  3  Am.  St.  Rep.  320.    And  see  au- 


POWERS  V.  COMMONWEALTH. 


525 


thorltles  on  this  point  In  former  opinion.  The  word  "furtherance" 
had  a  well-defined  and  generally  accepted  meaning,  which  is  "the  act 
of  furthering  or  helping  forward,  or  promotion  or  advancement." 

It  is  attempted  to  Justify  in  argument  the  admission  of  discon- 
nected statements  of  persons  who  are  not  shown  to  have  had  any 
connection  at  all  with  aiipellant,  or  any  of  those  jointly  Indicted  with 
him,  by  merely  showing  that  they  visiled  the  statehouse  square  dur- 
ing the  contest  proceedings,  and  had  access  to,  and  opportunities  for 
conversation  with,  then  Gov.  Taylor,  appellant,  and  others  who  are 
jointly  indicted  with  them.  It  may  be  assumed  as  a  fact  that  a  great 
many  people  in  this  State,  of  undoubted  personal  integrity,  sympa- 
thized politically  with  Gov.  Taylor  and  his  associates  upon  that  ticlcet 
in  their  race  for  their  respective  offices*  and  that  they  lllvewise  sin- 
cerely believed  that  Taylor  and  his  associates  had  been  really  and 
fairly  elected;  that  consequently  they  earnestly  hoped  that  they  misht 
retain  their  respective  places,  and  lo  that  end  they  gave  these  officials 
tlie  benefit  of  their  encouragemeni  or  presence  or  advice.  The  same 
thing  may  be  said,  and  be  equally  true,  of  the  adherents  of  the  othor 
side,  with  respect  to  their  candidates  and  their  causes.  Nothing  crinv 
inal,  nor  even  reprehensible,  in  the  eye  of  the  law,  can  be  imputed  tj 
such  conduct.  These  facts  alone,  however,  do  not  in  any  sense  consti- 
tute, or  tend  to  show  that  there  was  an  unlawful  conspiracy  by  these 
parties  to  commit  crime.  For  these  reasons  we  thinlv  the  testimony 
of  witnesses  Judge  Hazelrigg,  Ray,  Barlow,  Rosscau,  Stivers,  Miles  (in 
rebuttal),  and  Armstrong  irrelevant,  as  against  appellant  Vo  have 
knowledge  of  a  crime,  it  Is  not  necessarily  implied  that  one  possessing 
such  Ivnowledge  is  a  party  to  it.  The  utmost  that  is  apparent  con- 
cerning the  testimony  to  J.  W.  Ray  and  Judge  Hazelrigg  as  to  com- 
munications made  to  them  by  Guffy,  and  similar  testimony  of  other 
vitnosses  on  like  points  of  evidence,  that  Guffy  and  such  other 
witnesses  had  information  of  such  facts  as  induced  them  to  believe 
that  Senator  Goebel  would  be  killed.  Such  Information  would  net 
necessarily  make  its  possessors  parties  to  the  plot  to  do  the  killing, 
nor  does  it,  alone,  tend  to  prove  that  they  were  parties  to  such  a  plot. 

A  number  of  telegrams  were  Introduced,  some  of  which  were 
signed  by  Collier,  some  by  Reynolds,  Sharp,  Denny,  and  various  others, 
all  written  and  sent  directly  after  the  assassination  of  Senator  Goebel. 
In  so  far  as  such  telegrams  were  sent  by  appellant,  or  any  of  those 
jointly  indicted  with  him,  or  who  were  shown  to  have  been  acting 
under  and  by  authority  of  appellant  and  such  persons  jointly  charged 
with  him,  we  are  of  opinion  that  they  were  relevant;  otherwise  not. 

As  to  telegrams  sent  by  Collier  and  others  in  the  military  service, 
and  sent  immediately  after  the  assassination,  as  well  as  other  acts 
done  by  the  military  immediately  after  the  killing,  and  so  nearly  con- 
nected thcewith  as  to  be  a  continuation  of  what  was  then 
transpiring,  we  think  they  are  properly  admissible.  At  the  time 
of  the  killing,  Wm.  S.  Taylor  was  the  acting  Governor  of 
the    Commonwealth.    As    has    been    stated,    he    has    been    indicted 


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526 


AMERICAN  CRIMINAL  REPORTS. 


Jointly  with  appellant,  as  an  accomplice.  Under  the  rules 
of  evidence,  what  he  did,  if  anything,  at  the  time,  and  prior  to  (ho 
Killing,  that  was  in  furtherance  of  the  alleged  plan  to  kill  Senntor 
Goebel,  is  relevant  on  this  trial  of  appellant,  under  the  principles 
already  discussed.  Consequently  his  orders  and  directions  to  tlio 
state  militia.  In  so  far  as  they  had,  or  reasonably  appeared  to  have 
had,  connection  with  the  event  of  the  killing,  under  the  theory  of  the 
prosecution,  was  properly  admissible.  And  it  Is  under  this  head  t!,;it 
the  Collier  telegrams  were  admissible.  In  this  connection  it  was 
lihov.-n  that,  directly  after  the  assassination,  Gen.  Collier  sent  tele- 
grams to  Col.  Williams,  of  the  2d  regiment,  and  Col.  Mengel  nnd 
Lieut.  Col.  Gray,  of  the  1st  regiment,  worded,  "All  right."  In  le- 
spcn;;e  to  these  messages,  these  commanding  officers  brought  their  le^'i- 
ir.ents  forthwith  to  Frankfort.  The  defense  offered  to  prove  by  (ien. 
Collier,  who  was  adjutant  general,  and  in  command  of  the  militia  (if 
the  state,  whether  in  the  sending  of  such  messages  he  used  a  milit:;;y 
code  or  signal  previously  agreed  upon  between  him  and  his  subnidi- 
nate  officers,  and,  if  he  did,  to  explain  what  the  words  used  v.vo 
agreed  to  represent,  or  what  meaning  it  was  agreed  tbat  they  shou'd 
convey.  Tliis  was  objected  to  by  the  prosecution,  and  the  objerticn 
was  sustained  upon  the  idea  that  the  words  used  had  a  plain  mean- 
ing, "and  that  the  written  telegram  could  not  be  varied  or  exi)lai;:eil 
by  parol  testimony.  Ordinarily  the  rule  Is  that  unambiguous  writlnss 
offered  In  evidence  cannot  be  explained  or  changed  by  parol  teti- 
n:ony.  But  It  is  the  very  essence  of  all  code  or  cipher  arrangeniouts 
for  transmitting  Intelligence  that  the  words  actually  employed  should 
have  a  different  meaning  from  that  accorded  to  them  by  general  uso.  It 
Is  not  unusual  (Indeed,  It  Is  understood  to  be  the  custom)  to  em|)loy 
cede  or  cipher  forms  for  transmission  of  messages  In  military  oi);'ia- 
ticr.s.  We  know  of  no  rule  that  requires  such  code  or  cipher  ag'pc- 
ment  to  be  In  writing.  If  it  is  understood  by  the  i)artles  to  be  affected, 
its  purpose  It  serveij.  Therefore  It  was  competent  to  allow  tho-o 
acquainted  with  the  code  or  signal  or  cipher  agreed  upon  to  explain 
v/hat  the  words  actually  used  had  been  agreed  upon  as  representinj;. 
It  also  should  have  been  allowed  to  be  shown  when  such  signals  or 
cli)her  had  been  adopted  by  the  Adjutant  General's  office,  for  what 
employed,  what  It  signlfled,  and  when  and  on  what  occasions  to  hn 
used.  We  are  of  the  opinion  that  the  words  "All  right,"  as  employe! 
in  these  telegrams,  were  ambiguous;  that  Is,  of  doubtful  meaning,  or 
susceptible  to  two  or  mere  constructions. 

Certain  letters  written  by  appellant  were  offered  in  evidence  against 
hirn.  He  offered  to  explain  in  his  testimony  what  he  meant  by  cer- 
tain expressions  contained  in  the  letters.  This  was  overruled.  Wo 
think,  properly  so.  The  meaning  of  a  writing,  where  its  terms  are 
net  ambiguous,  must  be  gathered  from  the  writing  Itself. 

These  letters  fall  within  that  rule.  The  court  allowed  the  witness 
Prof,  rtephens.  In  testifying  for  the  Commonwealth,  to  explain  why 
he  wrote  certain   letters  to  appellant.     The   reasons  for  writing  his 


POWERS  V.  COMMONWEALTH. 


527 


letter  do  not  appear  to  have  been  all  Uiscloaed  to  appellant  at  tlie 
ilir.c.  Such  reasons  are  not  material,  for  they  appear  to  have  been, 
at  best,  but  suppositions  of  the  witness,  based  upon  general  rumors. 

This  witness  (Prof.  Stephens)  was  asked  if  the  reason  why  he  had 
left  his  former  home,  Barbourville,  was  not  because  appellant  "and 
Iiisj  adherents  In  that  locality"  had  so  treated  him  and  behaved  toward  < 
hlin  v.ii  to  make  his  removal  necessary.  The  witness  exculpated  appe'.- 
l.int  from  participation,  but  answered  the  remainder  of  the  que  .tio:i 
l:i  the  afllrmative.  This  alleged  treatment  is  said  to  have  occurred 
after  appellant's  first  trial.  It  clearly  cannot  be  charged  to  appellant 
that  other  people,  of  whom  he  had  no  control,  a  year  or  more  after 
the  conir.i'sslon  of  the  crime  for  which  he  is  being  tried,  had  mis- 
treated a  witness  for  the  prosecution. 

George  W.  Young  and  other  witnesses  were  asked  as  to  what  appel- 
lant caid  directly  after  the  infcrn;".tion  was  conveyed  to  him  of  the 
lining  of  Senator  Gcebel.  It  was  shown  that  this  was  some  niinute^ 
after  the  news  had  been  communicated  to  appellant.  The  court  re- 
jtctod  this  evidence,  and  we  think  properly  so.  It  could  not  have  been 
a  part  of  the  rcc  gcstir,  and  there  is  no  rule  of  evidence  with  which  we 
arc  acquainted  under  whl^h  it  could  have  been  admiticil. 

The  evidence  of  C.  M.  Barnett,  for  the  deteuse,  appears  to  us  to  be 
immaterial. 

The  opinion  on  the  former  appeal  sets  out  that  the  real  purpose  cf 
tl'.e  crowds  who  came  to  Frankfort  during  the  time  of  the  contests,  ;:o 
far  as  such  crowdn  were  brought  or  induced  to  come  l;y  aiii)ellant  and 
those  jointly  charged  with  him,  was  relevant,  and  might  be  shown. 
This  includes,  as  has  been  stated,  what  such  crowds  or  their  memberi 
did  an  I  said  in  furtherance  of  the  object  of  their  coming.  And  the 
use  of  the  militia  immediately  following  the  assassination  of  Sen- 
ator Cioebel  being  proved,  it  was  permissible  to  prove  also  tliat  they 
were  called  out  for  a  proper  and  lawful  purpose,  if  such  was  the  fact. 
Tiurefore,  when  the  defense  offered  to  prove  that  it  was  a  fact  that 
tliere  v.ere  angry  and  excited  crowds  gathering  about  the  execu- 
tive grounds,  threatening  the  occupants  cf  the  e::ecutive  build- 
ings with  violence,  and  that  statements  of  members  of  these 
crowds  were  incendiary  in  their  nature,  and  tliat,  from  the  ajipear- 
ance,  demeanor,  or  threats  of  such  crowds,  or  their  members,  riot 
appeared  imminent,  tliese  facts  were  clearly  relevant.  It  was  also 
offered  by  the  defense  to  prove,  but  the  court  rejected  it,  that  there 
was  a  common  rumor  current  in  Frankfort  at  that  time  that  a  large 
body  of  armed  men  frequently  assembled  In  the  buildings  near  the 
state  liouse  for  the  purpose  of  ejecting,  and  intending  to  forcibly 
eject,  the  Republican  officers  from  their  offices.  It  was  the  purpose, 
evidently,  of  the  defense,  to  show  the  existence  of  these  general 
rumors  as  a  justification  for  their  being  in  readiness  with  the  militia 
to  protect  themselves  in  their  offices.  We  arc  of  the  opinion  that 
whp.tever  knowledge  or  direct  information  was  possessed  by  the  ex- 
ecutive  authorities    concerning   these   matters   was   competent.     The 


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AMERICAN  CRIMINAL  REPORTS. 


trial  court  seems  to  have  so  ruled.    But  mere  rumors  should  not  be 
admitted. 

A  witness  for  the  prosecution  (Wharton  Golden)  is  alleged  to  havo 
made  a  statement  to  R.  L.  McClure  affecting  the  credibility  of  the  said 
Golden  as  a  witness.  This  is  the  conversation  that  is  alleged  to  have 
occurred  near  the  Phoenix  Hotel,  in  Lexington.  The  defense  offered 
to  prove  tills  statement  of  Golden's  by  witness  McClure,  and  was 
refused.  We  are  of  opinion  that  this  evidence  should  liave  been 
admitted.  We  think  the  admissibility  of  ether  evidence  objected  to 
may  be  tested  and  regulated  by  the  foregoing. 

The  testimony  offered  by  S.  H.  Stone  to  prove  that  a  witness  for 
the  Commonwealth  (Culton)  had  defaulted  or  been  guilty  of  em- 
bezzlement was  properly  rejected.  The  method  of  thus  impeaching 
a  witness  is  to  prove  his  onviction  under  such  charge.  See  Howard 
V.  Com.,  110  Ky.  35G;  22  Ky.  L.  R.  1807,  01  S.  W.  75G,  and  cases  there 
cited. 

Objection  was  made  to  the  competency  of  the  witnesses  Golden  and 
Culton,  indicted  as  accomplices  in  the  crime  for  which  appellant  was 
being  tried,  because  the  charge  against  the  said  witnesses  was  not 
first  dismissed,  and  because  to  permit  them  to  testify  for  the  Commcn- 
wealth,  under  the  circumstances  was,  in  effect,  to  make  their  own 
Immunity  dependent  upon  the  effectiveness  of  their  service  to  the 
prosecution.  The  majority  of  the  court  is  of  opinion  that  these  wit- 
nesses were  competent.  The  question  of  their  credibility  and  the 
weight  to  be  accorded  to  their  evidence  is  to  be  determined  by  the 
jury  in  the  light  of  all  the  facts  and  circumstances. 

Rev.  Cody  testified  as  a  witness  for  the  defense  concerning  certain 
alleged  statements  of  the  Commonwealth's  witness  Golden,  which 
affected  the  credibility  of  the  latter.  On  cross-examination,  Rev. 
Cody  was  asked  if  he  had  not,  on  the  occasion  in  question,  loaned 
some  money  to  Mr.  Stamper,  to  whom  he  says  he  was  then  making  a 
pastoral  call.  Stamper  was  a  brother-in-law  of  Golden.  The  witne-s 
was  required  to  answer,  and  said  that  he  had.  We  arc  of  opinion 
that  this  evidence  was  immaterial,  and  improperly  admitted.  Upon 
precisely  the  same  grounds  the  evidence  offered  that  Ed.  Steffy  had 
tried  to  borrow  money  from  supposed  friends  of  appellant  was  irrele- 
vant, and  was  properly  rejected. 

Walter  Day  wrote  to  C.  B.  Hill  that  he  possessed  certain  infor- 
mation of  value  to  the  prosecution,  as  against  Youtsey,  and  suggested 
that  the  Commonwealth's  Attorney  be  apprised  of  the  fact,  so  tWtit 
he  would  be  summoned.  He  later  wrote,  asking  Hill  to  destroy  the 
first  letter.  Day's  testimony  was  prejudicial  to  Youtsey,  and  was 
used  on  this  trial;  Youtsey  being  jointly  indicted.  The  letters,  how- 
ever, appear  to  be  wholly  immaterial,  and  therefore  irrelevant  as 
evidence  against  the  accused. 


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POWERS  V.  COMMONWEALTH. 


529 


DID    THE    ACTIOX    STAND    FOR    TRIAL    AT    THE    FIRST    TERM    AT    WHICH    THE 
MANDATE   OF   REVERSAL   WAS    NOTED   OF   RECORD? 

After  the  reversal  of  the  former  judgment  In  this  case,  and  more 
than  10  days  before  the  next  succeeding  term  of  the  Scott  Circuit 
Court,  the  attorney  for  the  Commonwealth  filed  in  the  office  of  the 
clerk  of  the  Scott  Circuit  Court  the  mandate  of  this  court  reversing 
the  former  judgment,  and  also  caused  to  be  served  upon  appellant  and 
upon  his  counsel  notice  to  the  effect  that  such  mandate  had  been  filed, 
and  that  the  Commonwealth  would  urge  a  trial  of  the  case  at  the 
succeeding  term.  When  the  court  convened  the  filing  of  the  man- 
date was  noted  of  record.  Appellant  objected  to  the  trial  at  that 
term  because  it  is  insisted  for  him  that  the  case  did  not  then  stand 
for  trial,  but  that  it  would  be  for  trial  at  the  succeeding  term;  that 
the  Scott  Circuit  Court  did  not  reg'^in  jurisdiction  over  the  case 
until  after  the  filing  of  the  mandate  had  been  noted  of  record  in  open 
court.  There  is  no  provision  in  the  Criminal  Code  of  Practice 
for  filing  a  mandate  of  the  reversal  in  the  clerk's  office  and  given 
notice  to  the  adverse  party  mere  where  the  accused,  who  had  been 
sentenced  to  a  term  in  the  penitentiary,  had  net  caused  the  judgment 
to  be  suspended,  but  had  been  carried  to  the  penitentiary  in  the 
execution  cf  the  judgment.  In  that  state  of  caso  is  provision  made 
for  filing  of  the  mandate  out  of  term  time,  and  for  proceedings 
thereon.  Nor  is  there  anything  in  the  Criminal  Code  cf  Practica 
which  would  prevent  the  Circuit  Court  frcm  proceeding  with  the 
trial  of  the  accused  at  tlie  same  term  at  which  the  mandate  of  the 
Court  of  Appeals  reversing  the  former  judgment  had  been  filed.  The 
quecticn,  of  course,  would  be  presented,  whether  the  accused  had  had 
reasonable  opportunity  since  the  reversal  to  prepare  his  case  and 
procure  the  attendance  of  his  witnesses.  The  Commonwealth's  At- 
torney in  this  case  followed  the  provisions  of  the  Civil  Code  of  Prac- 
tice on  this  subject,  wherein  a  provision  is  made  for  the  filing  cf 
the  mandate  in  the  clerk's  office  and  giving  notice  to  the  adverse 
party  more  than  10  days  before  the  beginning  of  the  term,  in  which 
event  the  case  would  stand  for  trial  at  that  succeeding  term.  The 
court  is  of  the  opinion  that  the  case  stood  for  trial  at  the  term  of 
the  court  during  which  the  filing  of  the  mandate  was  noted  of  record, 
subject  to  whether  the  parties  had  been  afforded  reasonable  time  an  1 
opportunity  to  prepare  for  trial.  The  service  of  the  notice  in  this 
case  was  acted  upon  by  appellant  and  his  counsel  with  e::pec'.ition,  an  1 
they  had  furnished  to  them  all  the  process  that  the  court  could  have 
awarded  them,  and,  in  our  opinion,  had  reasonable  opportunity  and 
time  to  have  prepared  fcr  trial.     At  least,  the  contrary  is  not  shown. 

An  affidavit  for  a  continuance  was  filed  by  appellant  because  of  V.\e 
rrsence  of  numerous  Important  witnesses.  Many  of  these  witne^sc? 
Qftr.ally  appeared  at  the  trial,  and  the  affidavit  was  allowed  to  hi 
read  as  the  depositions  of  those  absent.  After  the  accused  had  been 
afror('cd  the  process  of  the  court,  and  had  employed  it  without  avail, 
his  witnesses  being  absent  at  the  trial,  the  court  could  only  reason- 

Vol.  XIII— 34 


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AMERICAN  CRIMINAL  REPORTS. 


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ably  do  two  things:  One  was  to  allow  the  affidavit  to  be  read  as 
the  depositions  of  the  absent  witnesses,  and  the  other  was  to  awar:l 
an  attachment  for  those  who  had  disobeyed  the  subpoena.  Beth  oT 
these  the  court  did  In  this  case.  We  are  unable  to  see  that  appellant 
was  not  afforded  a  reasonable  and  fair  opixjrtunity  to  present  his 
case  in  this  respect. 

It  is  then  contended  for  appellant  that  the  affidavit  should  have 
been  read  as  true.  The  Criminal  Code  provides  that  this  shall  be  done 
only  when  the  trial  occurs  and  is  forced  at  the  indictment  term; 
that  is,  the  term  of  the  court  at  which  the  Indictment  is  returned. 
There  is  no  prevision  for  its  being  done  otherwise,  except  that  the 
trial  court  may,  when,  from  the  nature  of  the  case,  the  ends  of  justice 
require  it,  grant  a  continuance  unless  the  attorney  for  the  Common- 
wealth will  admit  the  truth  of  the  facts  which  it  is  alleged  in  the 
affidavit  such  absent  witnesses  would  testify  to.  Act  18SG,  amending 
section  189,  Cr.  Code  Prac.  In  construing  this  act,  this  court,  in 
Adkins  v.  Com.,  98  Ky.  539,  47  Ky.  L.  R.  1091,  33  S.  W.  948.  32  L.  R. 
A.  108,  held  it  to  be  net  violative  of  that  section  of  the  Constitution 
found  in  Bill  of  Rights,  par.  11,  to-wit,  "In  all  criminal  prosecutions 
the  accused  has  the  right  to  be  heard  by  himself  and  counsel;  to 
demand  the  nature  and  cause  of  the  accusation  against  him;  to  meet 
the  witnesses  face  to  face,  and  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor," — to  force  a  trial  of  one  accused  of 
crime,  although  some  ef  his  witnesses  were  absent,  if  the  affidavit  for 
continuance  was  permitted  to  be  read  as  the  evidence  of  the  absent 
witnesses,  subject  to  competency,  relevancy,  etc.,  provided  the  accused 
had  previously  been  furnished  the  compulsory  process  of  the  court, 
and  allowed  a  reasonable  cp;)ortunity  to  procure  the  attend.ince  of 
his  witnesses.  The  "compulsory  process"  means  not  only  the  crd! 
nary  subpffina,  but  a  warrant  of  arrest  or  attachment  for  such  wit- 
nesses as  failed  to  obey  or  avoided  service  of  the  first  subpoena  or 
recognizance. 

NIGHT     .SESSIONS. 

A  motion  was  entered  by  appellant  to  discontinue  the  night  ses- 
sions, which  was  overruled.  The  regulation  of  its  hours  of  session 
must,  from  the  nature  of  the  case,  be  left  largely  within  the  discre- 
tion of  the  trial  court.  It  alone  knows  the  condition  of  its  docket, 
and  the  demands  made  l;y  the  matters  before  the  court  upon  the 
time  allotted  by  statutes  to  the  term.  Unless  such  discrctien  has  been 
manifestly  abused,  to  the  prejudice  of  appellant,  this  court  will  not 
Interfere.  We  cannot  say  in  this  case  that  there  has  been  such  abuse. 
We  are  not  advised  as  to  the  condition  of  the  docket  of  the  Scott 
Circuit  Court  at  that  time.  The  court  subjected  both  sides,  and  Its 
judge,  to  the  same  treatment,  apparently,  as  to  working  hours. 

THE   PARDON    ISSUED  BY    W.    8.   TAYLOR. 

It  Is  again  argued  that  the  pardon  Issued  by  Wni.  S.  Taylor,  pro- 
fessing to  be  acting  as  Governor  of  the  Commonwealth,  on  the  10th 
day  of  March,   190O,  remitting  the  penalty,  and   pardoning  aiipcllaut 


POWERS  V.  COMMONWEALTH. 


531 


as 
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ant 
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Ue 


of  this  crime.  Is  good,  at  least  as  the  act  of  a  de  facto  officer:  that 
Taylor  was  then  actually  in  possession  of  the  office  and  archives,  and 
was  exercising  the  prerogatives  of  the  office  of  Governor,  and  as  such 
dc  facto  officer  his  acts,  as  between  all  others,  are  valid.  This  ques- 
tion w!is  also  fully  and  carefully  considered  by  the  court  on  the  for- 
mer ai)tteal;  and  the  ruling  then  made,  for  the  reasons  then  assigned, 
is  adhered  to. 

THE    MOTIOX    FOB    PKBEMPTOBY    INSTBUCTION. 

At  the  close  of  the  evidence  for  the  Commonwealth,  and  again  at 
the  conclusion  of  the  trial,  appellant  moved  for  a  peremptory  in- 
Ktruction  to  the  jury  to  find  him  not  guilty,  based  upon  the  idea  that 
there  was  no  competent  evidence,  oth3r  than  that  of  those  charged 
as  co-conspirators,  connecting  him  with  the  commission  of  the  crime 
for  whi(  h  he  was  being  tried.  The  rule  early  adoptod  and  persistently 
adhered  to  by  thii.  court  in  criminal  cases,  where  there  is  any  evidence 
tending  to  establish  the  guilt  of  the  accused,  is  that  the  question  is 
one  for  the  jury.  Of  course,  it  follows  that  if  there  is  no  evidence, 
or  no  competent  evidence,  which  is  the  same  thing  in  law,  against 
the  accused,  he  v.-ould  be  entitled  to  a  discharge.  And  under  the 
Code,  if  the  evidence  of  those  charged  as  co-conspirators  was  not  cor- 
roborated, ho  would  likewise  be  entitled  to  a  discharge.  In  the  argu- 
ment of  appellant's  counsel  under  this  head,  the  correctness  of  the 
foregoing  is  admitted.  To  show  that  there  is  no  evidence  against 
the  accused,  resort  must  be  had  to,  and  in  the  able  and  earnest  argu- 
ment made  in  behalf  of  the  appellant  the  effort  Is  made  to  meet  this 
rule  liv  an  analysis  of,  the  evidence  for  the  Commonwealth,  in  which 
probability,  verity,  and  veracity  are  discussed.  This  very  argument 
concedes  that  there  is  evidence,  if  credited,  that  would  operate  to 
take  the  case  to  the  jury.  The  weight  to  be  given  to  evidence  and 
the  credibility  of  the  witness  is  always  a  matter  for  the  jury.  If  full 
credit  is  given  to  the  testimony  of  the  Commonwealth's  wit- 
nesses, such  a  case  is  made  out  as,  under  the  rule  stated,  we  could 
not,  without  an  invasion  of  the  well-established  province  of  the  jury, 
order  the  care  taken  from  them.  Nor  should  this  court  be  tempted 
to  do  so  even  by  the  argument  that  the  violent  passion  of  the  jury 
may  result  in  a  particular  iustnnce  in  the  miscarriage  of  justice. 
However,  as  in  times  of  high  excitement,  juries  may  err  upon  -  .e 
side  or  the  other,  it  is  believed  that  the  greatest  safety  to  our  insti- 
tution;?, and  the  best  guaranty  of  the  citizens'  liberty,  lie  in  the  care- 
ful and  faithful  preservation  to  its  fullest  extent  of  this  ancient  right 
of  the  English-speaking  people.     The  motion  was  properly  overruled. 

THE  JUBY. 

Objections  were  made  by  affidavit  and  motion  to  the  manner  of  se- 
lecting the  Jury  In  this  case,  and  to  the  venire  because  of  its  bias. 
The  charges  made  are  of  a  most  serious  import,  if  true.  But  it  is 
proper  to  state  that  they  are  controverted,  except  as  to  the  fact  of 
the  political  affiliation  of  the  panel  summoned  In  the  case.    It  should 


ie      i 


il'  I 


532 


AMERICAN  CRIMINAL  REPORTS. 


net  be  said,  and  it  cannot  be  true,  that  per  se  a  Democrat  Is  disqua'i- 
fled  from  fairly  trylng.a  Republican  charged  with  crime,  or  vice  vena. 
If  men  should  be  selected  as  jurymen  whose  prejudices  would  be 
relied  on  to  procure  a  conviction  or  acquittal  of  one  whom  they  uro 
trying,  charged  with  crime,  we  are  fully  persuaded  that  the  fact  of 
the  politics  of  such  jurymen  would  not  be  the  cause  of  such  se'ec- 
tlon.  It  would  be  the  character  of  those  so  selected.  But  It  lias 
been  held  (Terrell  v.  Com.,  13  Bush,  24G;  Kennedy  v.  Com.,  14  Bush, 
342;  Forman  v.  Com.,  8G  Ky.  606,  9  Ky.  L.  R.  75,  6.  S.  W.  579)  that 
objection  to  the  panel  of  the  jury  shall  not  be  subject  to  review  by 
this  court.  It  Is  the  opinion  of  the  court  (a  point  upon  which,  how- 
ever, we  have  not  been  in  entire  accord)  that  under  paragraph  281, 
Cr.  Code  Prac,  this  court  has  no  jurisdiction  to  pass  upon  these  ques- 
tions. In  the  opinion  of  some  of  the  members,  when  jurisdiction  is 
conferred  upon  this  court  of  the  class  of  cases  it  Is  not  competent  for 
the  Legislature  to  limit  the  court  as  to  what  errors  it  may  reverse 
for,  or  as  to  what  shall  not  be  subject  of  reversal;  that  to  so  allow 
is  to  leave  the  propriety  and  legality  of  the  proceedings  In  the  court 
to  legislative,  and  not  judicial  control.  The  majority  of  the  court 
adheres  to  the  former  rulings  on  this  subject.  The  manner  of  se- 
lecting the  jury,  except  as  regulated  by  statute,  Is  within  the  control 
of  the  trial  court.  To  its  sense  of  fairness  and  desire  to  dispense 
that  justice  in  trials  whose  essence  Is  Impartiality,  this  question  must 
be  left.  ^ 

INSTRUCTIONS. 

m 

The  court  can  but  reiterate  what  was  written  In  the  former  opin- 
ion in  this  case  as  to  proper  instructions  to  have  been  given  to  the 
jury.  In  that  opinion  some  criticism  was  made  of  the  failure  of  the 
court  to  clearly  define  the  phrase,  "for  the  purpose  of  doing  an  un- 
lawful or  criminal  act."  In  t'  >  fourth  instruction  given  on  this  trial 
the  court  seems  to  have  defined  .,  'ch  purpose  to  have  ueen  that  of  kill- 
ing a  member  or  members  of  the  Legislature  of  which  William  Goebel 
was  a  member,  but  In  the  seventh  Instruction  given  to  the  jury  the 
court  adds  no  such  qualification  or  explanation  to  the  phrase;  the 
jury  being  told  that  if  appellant  and  those  Jointly  charged  with  him, 
or  any  of  them,  "conspired  to  do  some  unlawful  act,  and  In  pursuance 
thereof,"  etc.  Nowhere  In  this  Instruction  is  it  stated  what  the  un- 
lawful act  was,  but  the  determination  of  that  matter,  both  as  to  the 
fact  and  the  law  of  It,  seems  to  have  been  left  to  the  jury.  The  court 
is  of  the  opinion  that  the  trial  court  should  have  Instructed  the  Jury 
in  this  Instruction,  as  In  the  fourth,  what  would  have  been  such  an 
unlawful  act,  within  the  contemplation  of  law,  and  as  was  embraced 
by  the  evidence  allowed  to  go  to  the  jury. 

For  the  reasons  Indicated,  the  judgment  Is  reversed,  and  cause  re- 
manded for  a  new  trial  under  proceedings  not  Inconsistent  herewith. 

Ilonsox,  White,  and  Payxtkr,  JJ.,  dissent.     (70  S.  W. 
Rc'p.  1050;  24  Ky.  Law  Repr.  1086.) 


HOWARD  V.  COMMONWEALTH. 


633 


A  third  ti-ial  resulted  in  a  conviction,  which  was  reversed. 
r»(c.  G,  1004,  Powers  v.  Com.,  83  S.  W.  Rep.  14G;  2G  Ivy.  Law 
Kepr.  1111. 


Howard  v.  Com-moxwealtii. 

110  Ky.  356—22  Ky.  Law  Rep.  1845—61  S.  W.  Rep.  756. 
Decided  Marcli  28.  1901. 

Homicide:  Indictment — Declaration  of  co-conspirator — Improper 
cross-examination  of  defendant — Privilege  of  tvitness — Evidence 
— Misconduct  of  Prosecuting  Attorney — Instructions — Empanel- 
ling of  jury,  etc. 

1.  An  indictment,  which  in  apt  language  charges,  that  certain  persons 
acting  with  others  unknown,  did  with  intent  to  kill,  etc.,  shoot 
and  kill;  but  that  the  grand  jury  cannot  say,  which  of  such  i)er- 
sons  fired  the  fatal  shot,  nor  which  of  such  persons  counselled, 
aided  and  abetted  in  the  act,  is  a  valid  indictment  according  to 
the  statutes  of  Kentucky. 

2.  Under  this  indictment,  it  was  not  error  for  the  court  to  instruct 
the  jury  in  appropriate  language,  in  the  alternative,  that  the  jury 
could  return  a  verdict  of  guilty,  if  the  jurors  believing  from  the 
evidence  beyond  all  reasonable  doubt,  that  defendant  wilfully, 
etc.,  with  intent  to  kill,  did  shoot  and  kill,  or  if  they  so  believed 
that  either  of  the  other  defendants  did  so  shoot  and  kill,  the 
defendant  acting  with  them  and  then  and  there  counselling, 
aiding  and  abetting  him. 

3.  The  prosecution  introduced  more  than  one  indicated  accomplice. 
The  Court  gave  the  following  instruction,  which  \sas  substan- 
tially in  the  language  of  the  statute:  "The  defendant  cannot  be 
convicted  upon  the  testimony  of  an  accomplice,  unless  such  tes- 
timony is  corroborated  by  other  evidence  tending  to  connect  the 
defendant  with  the  offense;  and  such  corroboration  is  not  suffi- 
cient if  it  merely  proves  the  commission  of  the  offense,  and  the 
circumstances  thereof." — Held,  that  the  instruction  was  mislead- 
ing, in  that  It  implied  that  the  testimonj-  of  one  accomplice 
could   be  corroborated  by  the  testimony  of  another  accomplice. 

4.  When  a  prima  facie  case  of  conspiracy  has  been  made  out,  dec- 

larations of  a  co-conspirator,  pertaining  to  a  common  design,  and 
In  relation  to  res  gestae,  made  prui-  to  the  commission  of  the 
crime  is  admissible  in  evidence,  without  any  special  averment  as 
to  the  conspiracy;  but  such  declaration  must  be  in  furtherance 
of  the  common  object  or  constitute  a  part  of  the  res  gestae  of 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


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534 


AMERICAN  CRIMINAL  REPORTS. 


some  act  done  for  that  purpose.  When  not  In  the  nature  of  the 
act  (lone  In  furtherance  of  a  common  design,  but  merely  tonsV.n ; 
to  implicate  others  and  not  to  accuse  the  declarant  such  d:c- 
laratlon  is  not  competent  for  any  purpose. 

5.  In  cross-examining  a  defendant,  it  is  improper  to  inquire  as  to 
what  other  crime  he  has  been  charged  with,  and  as  to  the  par- 
ticulars of  it,  such  matter  not  pertaining  to  the  issue  on  trial. 

6.  By  voluntarily  taking  the  witness  stand  in  his  own  behalf,  a 
defendant  subjects  himself  to  cross-examination  as  to  matters 
charged  in  the  indictment;  but  not  to  Inquiry  regarding  his  par- 
ticipation in  other  supposed  crimes. 

7.  A  witness  (the  defendant)  need  not  answer  any  question  that 
would  tend  to  subject  him  to  a  criminal  prosecution. 

8.  A  witness  need  not  answer  a  question  that  would  subject  him 
to  Infamy;  but  this  privilege  does  not  extend  to  matters  which 
merely  tend  to  disgrace  lilm. 

9.  It  Is  Improper  to  inquire  of  the  witness  as  to  particular  criminal 

matters  as  a  basis  of  impeachment. 

10.  To  malce  incompetent  questions  reversible  error,  exceptions 
should  be  preserved. 

11.  It  was  error  to  allow  the  prosecution  to  prove  that  a  circuit 
judge  said  to  the  dafendant:  ".Tim,  I  am  glad  to  seo  you.  I 
want  to  compliment  you  on  what  you  did  in  Frankfn-.t.  I 
learned  about  you  through  my  son," — to  which  remark  the  de- 
fendant had  simply  nodded  and  passed  on. 

12.  Robert  Franklin,  the  regular  attorney  for  the  Commonwealth, 
being  absent  from  sickness.  It  was  error  to  permit  the  pro 
tevipore  prosecuting  attorney  in  his  closing  argument  to  say.  "I 
am  commissioned  by  Robert  Franklin  to  say  to  the  jury  that  he 
Is  In  thorough  accord  and  sympathy  with  the  prosecution,  and 
that  he  thinks  the  defendant  guilty,  and  hopes  the  jury  will 
hang  him  higher  than  Haman." 

13.  After  the  original  panel  of  jurors  was  exhausted,  the  court  di- 
rected the  sheriff  to  summon  a  special  venire.  Instead  cf  caus- 
ing names  to  be  drawn  from  the  jury  v.heel.  On  motion  fov  a 
new  trial,  numerous  affidavits,  giving  clrcumptances  and  details, 
were  presented  to  show  that  four  of  the  JTirors,  before  being 
accepted,  had  expressed  opinions  to  the  effect  that  defendant  was 
guilty,  which  facts  were  not  communicated  to  the  defendant 
previous  to  the  verdict.  These  jurors  denied  the  charges  against 
them.  Without  making  any  specific  holding,  the  court  sug'^ests, 
the  great  importance  of  using  every  precaution  to  procure  strict 
and  impartial  jurors. 

Payntkr,  C.  J.,  and  Hobson^  and  Wjiitk,  JJ.,  concur  in  the 
reversal;  Imt  dis.sont  as  to  part  of  tlio  ojiinion. 

Ajjpeal  from  the  Circuit  Court,  Franklin  County. 
James  Howard,  convicted  of  murder,  appeals.    Keversed. 


f  tho 
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IS  to 
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M. 

If,   a 

tiers 
par- 


HOWARD  V.  COMMONWEALTH. 


535 


\V.  E.  Owens,  J.  B.  Finnell,  and  Carlo  Little,  for  the  appel- 
lant. 

Roht.  J.  Breckinridge,  B.  G.  Williams,  and  T.  C.  Campbell, 
for  the  Commonwealth. 

BimxAM,  J.  The  appellant,  James  TToAvard,  was  jointly 
indicted  with  Henry  Yontsey,  Berry  Howard,  Harlan  Whitakcr, 
and  Richard  Combs  for  the  murder  of  William  Goebel.  and  was, 
upon  separaie  trial,  found  guilty  of  murder,  and  judgment  was 
rendered  in  pursuance  of  the  verdict.  The  indictment  charges, 
viz. :  "That  the  said  Henry  Yontsey,  James  Howard,  Berry 
Howard,  Harlan  Whitaker,  Richard  Combs,  and  othevt.  then 
and  there  acting  with  them,  but  who  are  to  this  grand  jury 
unknown,  in  the  county  of  Franklin,  on  the  30th  day  of  .Fanu- 
ary,  1!)()0,  and  before  the  finding  of  this  indictment,  unlawfully, 
willfully,  feloniously,  of  their  malice  aforethought,  and  with 
intent  to  kill,  did  kill  and  murder  William  Goebel,  by  shooting 
and  wounding  him  with  a  gun  or  pistol  loaded  with  jjowder  or 
other  exj)losivo8,  and  lead  and  steel  ball  and  other  hard  sub- 
stances, and  from  which  said  shooting  and  wounding  the  said 
Goebel  died  on  the  3d  day  of  February,  1900;  and  the  indict- 
ment does  further  charge  that  one  of  the  above-named  defend- 
ants, or  another  person  then  and  there  acting  Avith  thoni,  but 
whose  name  is  to  this  grand  jury  unknown,  did  so  as  aforesaid 
then  and  there  kill  and  murder  said  Goebel,  and  the  other  of 
said  defendants  did  then  and  there  counsel,  advise,  assist,  aid, 
and  abet  same;  but  which  so  actually  fired  the  shot,  and  which 
so  actually  counseled,  aided,  advised,  and  abetted  therein,  is  to 
this  grand  jury  unknown." 

Appellant  com])!ain3  of  the  indictment  because  it  charges  him 
with  being  the  principal,  and  at  the  same  time  of  being  tlie  aider 
and  abettor  of  the  four  ot'aer  persons  named  therein,  and  of 
another  person  then  and  there  acting  with  them,  but  who  is  to 
the  grand  jury  unknoA\ai,  in  the  commission  of  a  crime  which 
was  the  result  of  a  single  act,  the  firing  of  a  single  shot;  and 
to  support  this  contention  we  are  referred  to  the  cases  of  Com. 
V.  Patrick,  80  Ky.  605,  4  Ky.  Law  Repr.  GOO;  Mulligan  v. 
Com.,  84  Ky.  230,  8  Ky.  LawVtepr.  211,  1  S.  W.  417.  In  the 
Patrick  Case  the  offense  charged  in  the  indictment  was  that 
Amos  and  Wiley  Patrick  shot  at  and  womided  Joseph  T|ver 
with  a  pistol,  and  that  each  of  them  was  present,  and  aided  and 


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■  :  \IH. 


AMERICAN  CRIMINAL  REPORTS. 


encouraged  the  other  to  commit  the  offense.  In  that  case  the 
(lenmrrer  to  the  indictment  was  sustained  upon  the  ground  that 
the  punishment  imposed  by  the  statute  was  upon  the  person 
alone  who  actually  coinmitted  the  act  constituting  the  otVcnsc, 
and  that  there  was  no  provision  in  the  statute  lor  the  i)unisli- 
ment  of  an  aider  and  aljettor;  and  that,  as  it  was  a  purely 
statutory  otTense,  an  indictment  did  not  lie  for  aiding  and 
ahetting  therein,  the  aiding  and  abetting  being  a  minor  olTeiise, 
punishable  only  as  a  misdemeanor.  In  the  Mulligan  Case  there 
was  no  question  as  to  the  sulliciency  of  the  indictment,  but  the 
question  was  one  of  variance.  The  indictment  was  against  Mul- 
ligan alone,  and  charge<l  him  as  the  actual  perpetrator  of  the 
crime,  and  the  court  held  that  ])roof  that  he  was  only  an  aider 
and  abettor  constituted  a  variance.  When  the  court  said  that 
the  indictment  must  disclose  the  nanu;  of  the  principal,  it  did 
not  mean  that  there  could  be  no  indictment  if  the  name  of  the 
actual  perpetrator  of  the  cri'iie  was  unknown.  The  case  adjudged 
was  that  proof  that  the  defendant  aided  and  alx'ttcd  the  com- 
mission of  the  felony  will  not  supj)ort  an  indictment  charging 
him  as  the  actual  perpetrator  of  the  crime,  unless  the  actual 
]K'r]ictrator  is  joined  with  him.  In  this  case  the  indictment 
charges  that  one  of  the  defendants  fired  the  shot,  and  that  the 
others  were  present,  aiding  and  alx^tting,  and  that  the  grand 
jury  does  not  know  which  one  fired  the  shot.  This  is  in  effect 
an  averment  in  the  alternative  as  to  the  different  modes  and 
the  diiferent  means  by  which  the  offense  may  have  been  com- 
mitted, as  authorized  by  section  12(5  of  the  Criminal  Code.  That 
the  actual  perpetrator  of  a  criminal  act  and  one  present  aiding 
and  alx'tting  him  nuiy  be  jointly  indicted  in  the  alternative,  one 
as  the  jn-incipal,  and  the  other  as  the  aider  and  abettor,  and  that 
either  may  be  convicted  as  principal  or  as  aider  and  abettor, 
has  been  frequently  held  by  this  court.  *See  Benge  v.  Com.,  92 
Ky.  1,  13  Ky.  Law  Rei)r.  308  (17  S.  W.  140) ;  Travis  v.  Com., 
9(1  Ky.  77,  10  Ky.  Law  Repr.  253  (27  S.  W.  803) ;  Howard  v. 
Com'.,  96  Ky.  19,  10  Ky.  Law  Repr.  201  (27  S.  W.  8.54) ; 
Jucksoti  V.  Com.,  100  Ky.  239,  18  Ky.  Law  Repr.  795  (38  S. 
W.  422).  To  say  that  one  who  is  known  to  have  been  present 
aiding  and  abetting  a  murder  cannot  be  punished  because  the 
person  who  fired  the  shot  is  not  known  would,  in  a  large  degree, 
destroy  the  efficacy  of  the  law  for  the  punishment  of  crime. 
Bishop,  in  his  Xew  Criminal  Law  (section  495),  says,  viz. :  ''A 


HOWARD  V.  COMMONfWEALTH. 


537 


frrnnd  jury  should  not  indict  a  man  unlofls  ronaonnhly  infoiiuod 
nf  his  guilt;  hut  the  jurors  may  know  it  sufficiently  whiln 
iffuorant  of  an  identifying  circumstance  such  as  ought  ordi- 
narily to  appear  in  the  allegation.  Then  they  may  state  the 
main  facts,  adding  that  this  circumstance  is  unknown  to  them, 
and  the  indictment  will  be  good.  Thus,  if  they  are  ignorant 
of  identifying  names,  the  allegation  may  Ix;  in  this  form;  that 
is,  the  indictment,  instead  of  saying  what  they  are,  may  state 
that  they  are  to  them  unknown."  We  are,  therefore,  of  the 
opinion  that  the  indictment  comes  uj)  to  the  requirements  of 
sectitm  124  of  the  (Vinunal  Code. 

The  next  ground  of  complaint  is  that  the  instructions  given 
l(v  the  court  to  the  jury  do  not  fairly  and  correctly  state  the 
law  of  the  case.  Only  three  instructions  were  given,  and  only 
two  of  them  are  complained  of  up<m  this  appeal.  The  basis  of 
ajipellant's  objections  to  the  first  instruction  are  the  same  as 
those  which  are  urf>ed  apiinst  the  validity  of  the  inilictiiient 
itself.  It,  in  effect,  tells  the  jury  that  if  they  helieve  I'rom 
the  evidence,  l)eyond  a  reasonable  doubt,  that  the  defendant 
willfully  and  nmliciously  shot  the  deceased  with  the  intent  to  kill 
him,  and  from  which  sh(M)ting  he  afterwards  died;  or  it'  they 
believe  from  the  evidence,  In-yond  a  reasonable  doubt,  that  either 
of  the  other  defendants  named  in  the  indictment  willfully  and 
maliciously  shot  the  deceased,  and  from  which  shooting  be  soon 
then  after  died;  and  they  lu-lieve  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  was  then  and  there  acting 
with  them,  or  any  one  of  them,  and  did  then  and  there  counsel, 
aid,  and  abet  such  shooting, — they  should  find  him  guilty.  This 
instruction  has  been  frequen.tly  a])pro''  'd  hy  this  court  in  cases 
similar  to  that  on  tri.;)  and  is  a  fair  and  clear  statement  of  the 
law.  The  next  instrue  ion  complained  of  is  as  follows:  "The 
defendant  cannot  be  convicted  upon  the  testimony  of  an  accom- 
plice, unless  such  testimony  is  corroborated  by  other  evidence 
tending  to  connect  the  defendant  with  the  offense;  and  such 
cornjboration  is  not  sufficient  if  it  merely  proves  the  commis- 
sion of  the  offense,  and  the  circumstances  thereof."  This  in- 
struction is  substantially  in  the  language  of  section  241  of  the 
Criminal  Code,  and  in  cases  where  only  one  accomplice  was 
intrf.duced  by  the  Commonwealth  would  be  a  sufficient  com- 
pliance with  the  Code;  but  in  this  case  the  Commonwealth  in- 
troduced as  witnesses  two  persons  who  had  been  previously  in- 


1 


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if 


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^^ 


538 


AMERICAN  CRIMINAL  REPORTS. 


dieted  as  acccssorifs  before  the  fact  to  the  murder  of  the  de- 
ceased, and  it  complained  that  the  instruction  is  erroneinirt  and 
misleading  heeauso  it  fails  to  tell  the  jury  that  the  testimony 
of  one  accomplico  or  accessory  before  the  fact  cannot  be  ustd 
to  corroborate  the  testimony  of  the  other  for  the  purpose  of 
convicting  the  defendant.  The  rule  as  to  the  corrobonitidn  of 
accomplices  is  Htated  in  Ivos^c.  Cr.  Ev.  122,  as  follows:  ''Then! 
should  be  some  fact  deposed  to  independently  altogether  of  the 
evidence  of  the  a('comi)li('e,  which,  taken  by  itself,  leads  to  the 
inference  not  only  that  a  crime  has  been  committe(l,  but  that 
the  prisoner  is  implicated  in  it."  Iluss.  Crimes,  5M»2,  says  that, 
viz. :  "It  is  not  sulHcient  to  corroborate  an  accomplice  as  to  the 
facts  of  the  case  in  general,  but  that  he  must  Ik?  corroborated  as 
to  some  nuiterial  fact  or  facts  which  go  to  prove  that  the  jjcrson 
was  c(mnected  with  the  crime."  The  dejjree  of  evidence;  which 
shall  be  deemed  sutficient  to  corroborate  the  testimony  of  an  ac- 
complice is  a  matter  for  the  jury;  but  there  must  be  some  fact 
('ep>scd  to  independently  altogether  of  the  evidence  of  an  accom- 
plice, whether  one  or  a  dozen  is  intrdductd  by  the  Common- 
wealth, which,  taken  by  itself,  fairly  tends  to  connect  the  de- 
fendant with  the  connnission  of  the  crime,  so  that  his  conviction 
will  not  rest  entirely  upon  the  evidence  of  accomplices  (see 
People  V.  rialf,  4  X.*  Y.  Cr.  K.  5;3;  3  Rice,  Ev.  p.  Till,  and  au- 
thorities there  cited)  ;  and  this  instruction  is  erroneous  bei-ause 
it  fails  to  present  this  idea. 

We  will  next  consider  the  claim  of  appellant  that  numerous 
errors  to  bis  i)rejudice  were  committed  in  the  admission  of  in- 
competent testimony.  As  most  of  the  objections  to  the  testi- 
mony ai'c  based  upon  the  same  general  rule  of  evidence,  with  a 
view  to  brevity  we  will  consider  a  number  of  them  together. 
First,  it  is  claimed  that,  as  there  was  no  charge  of  a  conspiracy 
in  the  indictment,  it  was  error  to  allow  numerous  witnesses  to 
prove  the  condition  of  the  State-House  yard  on  the  morning  of 
the  30th  of  January,  the  day  on  which  deceased  was  shot,  as 
compared  with  the  five  or  six  preceding  days,  with  reference 
to  the  number  of  people  therein ;  and  also  that  the  witness  Cul- 
ton  was  permitted  to  testify  as  to  conversations  had  with  Yout- 
sey  on  the  12th  and  13th  of  January,  in  which  Youtsey  detailed 
a  plan  to  him  for  shooting  the  deceased  from  the  office  of  the 
Secretary  of  State,  and  the  manner  in  which  it  could  ho  done, 
and  how  the  perpetrator  could  escape  through  the  basement  of 


HOWARD  V.  COMMONWEALTH. 


539 


the  building;  and  nl«o  an  to  convcrsntioin  ju  wliidi  Youtsoy 
talked  to  him  about  Hiiiokc^lcss  jxAvder,  ck'. ;  mid  that  the  wit- 
ness Gulden  was  [x-nuitted  to  testify  that  Jnhn  Powers  f>avo 
to  Voiitscy  a  key  to  the  ofliee  of  the  Secretary  of  State  on  the 
Jiioriiiiii;  of  the  .'{Oth  day  of  January;  and  that  the  witness 
Hicketts  was  ix^nnitted  to  tc  lify  as  to  conversations  had  with 
Youtsoy  as  to  the  killing  of  the  deceased  several  days  jjrevious 
to  the  .'JOth  of  January,  aJid  also  as  to  his  con<lnct  on  tlie  niorn- 
in;;  of  the  HOth  in  condm  .injj;  men  from  the  af;rieidtnral  to  the 
executivo  huildinj;,  and  stationin*!:  llioni  at  the  foot  of  the  stair 
steps,  and  as  to  directions  ^iveti  them  hy  him;  and  to  the  testi- 
mony of  McDcmald  to  the  ell'ect  that  he  liad  seen  Hcrry  Howard 
and  Culton  in  conversation  near  the  cai)it(d  hnildini;'  just  prior 
to  the  shooting;  and  the  testimony  of  the  witness  Day  as  to 
talks  with  Youtsey.  Of  course",  the'  testimony  of  neither  of 
tlu'sc  witne'sse\s  has  any  Ix^aring  upon  ihe'  fiuiil  or  innceence!  of 
the  eh'fe'udant,  Ileiwarel,  unless  the  ('einune)nwe'!iltli,  liy  other 
testinie)ny,  cstahlishes  a  ji'idlty  ceinnertion  he'twe'e'u  tlie'  detenel- 
ant  anel  Yemtse'y,  anel  she)ws  to  the  satisfactiem  of  the  jury  either 
that  lie'  fire'tl  the  fatal  slie)t,  or  was  prese-nt  anel  aidcij  iunl  en- 
courageel  Yeiutsey  eir  aneither  to  eh)  so.  The  testimony  in  this 
case  is  alte)/;etlK'r  cire'unistantial,  anel,  as  was  saiel  in  the-  e  iso  eif 
Ohricn  V.  Com.,  S!)  Ky.  W2,  1 1  Ky.  Law  Ue-pr.  r.:!4  (  12  S.  W. 
471):  ''Necessarily,  where  the  proof  of  a  crime'  can  only  ho 
sheiwn  hy  pre)of  of  circumstances,  the  evielene*e  shomd  he  al- 
le>wed  to  take  a  wiele  range;  e)therwise,  the  guilty  would  of ti  n 
go  unpuiMshed.  It  is  true^  that  there  must  he  some  coiinectieiu 
hetwe-e'U  the  fact  te)  he;  i)rove'n  anel  the  circumstaiu'es  offere'el  in 
sujipeirt  e)f  it,  ye't  any  fact  which  is  newssary  to  e-xplain  an- 
e)ther,  or  which  olfers  a  particular  o|)]ie)rtunity  for  the'  traiisac- 
tieui  whie-h  is  in  issue,  or  shows  facilities  or  motives  for  the 
counnissiein  of  the  crinu',  nmy  ho  ])roven."  Anel  cm  the  trial  of 
ejne  e»f  se'veral  eh'fenelants  je)intly  inelicted  for  an  olfonso  the 
dechiration  e)f  a  co-elefenelant,  maelo  in  the  absence  e»f  the-  ele- 
fendant  etn  trial,  in  furtherance  of  the  common  ]inrpnse,  is  ad- 
niissiblo  when  a  prima  fade  case  of  conspirae-y  has  been  uuulo 
out.  Te)  autheirize  the  admission  of  such  ovieloiu'e',  an  express 
averment  in  tlu'  inelictnient  of  ^lie  fact  of  a  cou'^piracy  is  not 
necessary.  See  Goins  r.  Sfaffl,  40  Ohio  St.  457,  21  X.'  K.  476. 
"But,  to  make  the  declaration  competent,  it  must  have  been  in 
furtherance  of  the  prosecution  of  the  common  object,  or  con- 


'   !    I     >  ! 


AUil- 


1 

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ii 

; 

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ir 


540 


AMERICAN  CRIMINAL  REPORTS. 


Btituted  a  part  of  the  res  gestae  of  some  act  done  for  that  pur- 
pose."    Sec  Tayl.  Ev.  p.  542,  §  530. 

Mr.  Archibald,  in  his  work  on  Criminal  Practice  and  Plead- 
ing (volume  2,  p.  1059),  gives  a  very  concise,  yet  comprehen- 
sive, statement  of  the  law.  He  says,  viz. :  "Wherever  the 
writings  or  words  of  any  of  the  parties  charged  with  or  impli- 
cated in  a  conspiracy  can  be  considered  in  the  nature  of  an  act 
done  in  the  furtherance  of  the  conmion  design,  they  are  ad- 
missible in  evidence  against  not  only  the  party  himself,  but  as 
proof  />f  an  act  from  which,  inter  alia,,  the  jury  nuiy  infer  the 
conspiracy  itself.  But  wherever  the  writings  or  words  of  such 
a  party,  not  being  in  the  nature  of  an  act  done  in  furtherance  of 
the  common  design,  merely  tends  to  imi)licate  others,  and  not  tlie 
accused  himself,  they  ought  not  to  be  received  in  evidence  for 
any  i)urpose."  And  this  doctrine  is  approved  in  Wright,  Cr. 
Consp.  p.  217,  and  in  Clawson  v.  State,  14  Ohio  St.  2J54,  and 
State  V.  Larhin,  41>  X.  II.  39.  It  seems  to  us  that  these  dechu'a- 
tions  of  Youtsey  come  within  the  rule  laid  down  in  these  au- 
thorities, and  are  coujpetent  evidence  to  go  to  the  jury.  But  it 
must  not  be  forgotten  that  the  defendant's  giiilt  as  principal 
or  accessory  can  only  be  finally  established  by  evidence  of  his 
own  acts.  See  Wright,  Ci*.  Consp.  69,  71 ;  Stei)h.  Dig.  Cr. 
Law,  art.  39.  And  the  testimony  of  B.  P.  Wliite  on  cross- 
examination  as  to  an  altercation  had  by  him  with  one  of  the 
witnesses  for  the  Commonwealth  on  the  train  was  competent  to 
sh(»w  the  feelings  of  the  witness,  and  the  same  may  ha  said  of 
"the  objections  to  the  cross-examination  of  the  witness  Parker. 

I'pon  the  cross-examination  of  the  defendant  by  an  attoi-ney 
for  the  Connnonwealth  he  was  asked  the  ff)llowing  cpiestions, 
and  was  forcetl  to  answer  them,  over  his  objections:  "(^.  What 
was  the  offense  charged  against  you  for  which  these  gentlemen 
were  defending  you  'i  A.  I  have  told  you  that.  Q.  Tell  us 
now.  A.  It  was  for  murder — for  the  killing — of  George  Baker. 
I  was  cliarge<l  with  the  killing  of  him.  Q.  Was  he  not  an  old 
man,  with  his  hands  up,  and  begging  you  for  God's  sake  to  spare 
his  life?"  Further  along  in  the  cross-cxaminaticm  the  same 
counsel  asked  the  witness  "if  he  did  not,  from  a  window  in  the 
house  of  Beverly  White,  with  the  curtains  drawn,  in  the  town 
of  ^Manchester,  shoot  Tom  Baker,  in  the  presence  of  his  wife 
and  infant  children  '^"  to  which  the  defendant  answered  that 
he  did  not.     He  was  then  asked  whether  he  was  present  when 


HOWARD  V.  COMMONWEALTH. 


541 


pur- 

ad- 
len- 
tho 
pli- 
act 
ad- 
as 
the 
iicli 
of 
the 
for 
(>. 
ind 
ra- 
ait- 
t  it 
[)al 
hi. 


this  Avaa  done,  and  where  he  was,  and  as  to  who  had  been  in- 
dicted +"or  the  killing  of  Tom  Baker.  No  exceptions  were  taken 
to  tnese  questions  with  reference  to  the  killing  of  Tom  Baker, 
and  they  would  not  be  considered  u[)on  this  api)eal  except  for 
the  fact  that  the  court  has  concluded  that  the  judgment  must 
be  reversed  on  other  grounds,  and  a  new  trial  had.  The  wit- 
ness was  privileged  from  answering  these  (piestions,  not  only 
because  it  was  an  attempt  to  impeach  his  testimony  by  proof 
of  particular  acts  which  had  no  connection  with  the  offense  for 
which  he  was  being  tried,  but  also  because,  if  he  answered  in 
the  atfirmative,  he  would  have  subjected  himself  to  prosecution 
for  other  offenses  having  no  connection  with  that  for  which  he 
was  being  tried. 

In  a  long  line  of  decisions  this  court  has  uniformly  held  ques- 
tions of  this  character  incompetent.  In  Sodufilii/  v.  McGee,  5 
J.  J.  ilarsh.  (i'2-2,  John  Chowning,  a  witness  for  the  ap])el- 
lee,  having  sworn  to  facts  which  occurred  in  the  encounter  be- 
tween ^IcGee  and  the  appellants,  Avas  asked  by  their  counsel  ''if 
he  was  not  engaged  at  the  time  or  shortly  before  the  commence- 
ment of  the  encounter,  some  distance  off,  nlaying  cards  with  a 
negro  fellow." 

In  ]>assing  upon  the  competency  of  this  question  Chief  Jus- 
tice Robertson  said:  "A  witness  should  not  be  compelled  to 
l)rove  his  own  general  character,  nor  should  he  be  required  to 
prove  any  special  fact  reUecting  upon  his  character,  unless  it  bo 
]icrtinent  to  the  issue,  independent  of  its  tendency  to  affect  Lis 
character.  His  charact<  r  coiild  not  be  assailed  by  other  wit- 
nesses by  proof  of  particular  facts,  and  certainly  it  would  Iw 
inipro]Kn'  to  compel  him  to  prove  facts  relating  to  his  character 
which  others  would  not  be  permitted  to  prove.  But,  if  the  fact 
itself  l)e  pertinent  and  legitimate,  it  is  at  least  very  questionable 
on  ]>rinciple,  as  well  as  authority,  whether  a  witness,  as  a  matter 
of  course,  would  ho  excused  from  answering  questions  relating 
to  it  merely  because  they  might  in  some  degree  tend  to  subject 
him  to  reproach  not  infamy,  or  might  tend  to  reHect  upon  his 
character  some  degree  of  disparagement.  See  Starkie,  Ev. 
137-139,  14-1.  Anciently  a  witness  might  be  compelled  to  an- 
swer (piestions  which  reflected  infamy  upon  him  (Peake,  129, 
130 ) ;  but  this  doctrine  has  been  overruled  by  modern  cases.  See 
3ta(c  Tr.  748 ;  Starkie,  153 ;  People  v.  Herrick,  13  Johns.  82. 
How  far  the  tendency  of  a  question  to  disparage  a  witness  with- 


In 


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542 


AMERICAN  CRIMINAL  REPORTS. 


^^il 


\\-.\ 


m 


cut  rendering  him  infamous  may  entitle  him  to  be  excused  from 
answering  it  has  nut,  so  far  ac  we  know,  been  settled  bv  au- 
thority." The  cases  of  Cole  v.  Wilson,  IS  B.  Mon.  214,  and 
Pence  V.  Dozier,  7  Bush.  138,  arc  to  this  elfect.  And  in  dis- 
cussing the  question  in  Saylor  v.  Com.,  97  Ky.  11)0  (uO  S.  W. 
3U0),  the  court  said,  through  Judge  Paynter :  "It  is  a  rule  that 
a  witness  is  not  bound  to  answer  any  question  which  would  tend 
to  subject  him  to  punishment,  presentment,  or  infamy.  I'lidc  r 
the  bill  of  rights  he  cannot  be  compelled  to  give  evidence  against 
liimself,  but  when  he  becomes  a  witness  for  himself  in  a  crim- 
inal prosecution  he  waives  that  right  so  far  as  the  charge  imder 
investigation  is  concerned.  Hut  th'^  fact  that  he  does  so  waive 
it  does  not  give  the  Commonwealth  tl;e  right  to  com])el  him 
to  admit  the  connnission  of  other  offenses  which  would  subjict 
him  to  punishment,  presentment,  or  infamy;  for,  if  this  were 
done,  it  would  be  in  utter  disregard  of  the  bill  of  rights,  and 
in  many  cases  deter  persons  accused  of  offenses  from  going  on 
the  stand  as  witnesses  for  themselves,  as  a  forced  confession  of 
another  oll'ense  might  subject  to  greater  i)unishment  than  the 
charge  under  investigation."  In  Leslie  v.  Com.  (Ky.),  42  S. 
W.  1()J)5  (19  Ky.  L.  II.  1201),  it  was  lield  that  it  was  preju- 
dicial to  the  rights  of  the  accused,  who  was  on  trial  for  murder, 
to  ask  him  upon  cross-examination  if  he  had  not  Ix^en  arrested 
for  discharging  firearms  in  a  certain  town,  and  for  carrying 
concealed  weapons.  The  court  said:  "This  question  should 
only  Ik"  admissible  to  show  a]ipellant's  guilt  of  ])nrticular  acts, 
and  therefore  is  within  the  inhibition  of  section  r»;)7  of  the  Civil 
Code."  So,  in  Lewis  v.  Com.  (Ky.),  42  S.  W.  1127  (19  Ky. 
L.  K.  ll!)!*),  the  court  held  that  it  was  error  prejudicial  to  the 
substantial  rights  of  the  defendant  to  have  asked  the  clerk  of 
the  Bourbon  Circuit  Court  if  there  Avas  not  an  indictment 
against  a  witness  who  testified  for  the  defendant  charging  her 
witli  l)eing  accessory  to  the  inurder  for  Avhich  the  defendant  was 
being  tried.  The  court,  through  Judge  \\nute,  said  :  "This  was 
error  prejudicial  to  the  substantial  rights  of  the  defendant,  and 
Avas  an  attempt  to  impeach  a  witness  by  showing  that  she  had 
been  indicted  as  accessory  to  the  crime  of  the  murder  of  Amelia 
Lewis. 

Witnesses  cannot  be  impeached  by  proof  of  jtarticular  acts  or 
nff(n«es  that  they  might  have  been  gniilty  of,  but  the  inquiry 
must  lx>  confined  to  the  general  character,  and  not  to  the  par- 


fi! 


iUl- 

aiid 


i 


HOWARD  V.  COMMONWEALTH. 


543 


ticular  acts  charged  against  the  witness.  It  is  evident  that  tlie 
testimony  was  introduced  for  the  purpose  of  inqjcaching  or 
weakening  the  testimony  of  the  witness,  and,  we  have  no  doubt, 
influenced  the  jury  in  considering  her  costimonv."  In  Baker  v. 
Vo.iu  (Ky.),  50  S.  W.  54  (20  Ky.  L.  11.  177s'),  apijclhuit  was 
on  trial  for  the  murder  of  W.  L.  Wliite.  Upon  cross-examina- 
tion the  Conimonweahh  was  permitted,  against  the  objection  of 
the  defendant,  to  prove  by  liim  that  he  was  under  indictmcHt 
lur  house-burning,  and  also  to  ask  him  wliether  lie  had  been 
indicted  for  anything  else.  This  was  held  prejudicial  error. 
In  the  very  recent  case  of  Pennhujton  v.  Com.  (Ky.),  51  S.  \V. 
818  (21  Ky.  T-.  11.  542),  in  which  the  defendant  was  convicted 
of  murder,  and  sentenced  to  the  penitentiary  for  life,  on  the 
trial  appellant  was  asked  as  to  other  indictments  against  him. 
The  court,  in  an  opini(;n  by  Judge  llazelrigg,  held  that  '*undtr 
section  5!»T  of  the  Civil  Code  a  witn(>ss  could  not  be  impeached 
by  evidence  of  wrongful  acts  except  in  the  manner  jiointed  out, 
and  that  the  evidence  quoted^  Avas  incompetent,  and,  frum  its 
nature,  prejudicial." 

And  in  the  ca^e  of  A.shcrcfl  r.  Com.,  00  S.  W.  ^^^U  (22  Ky. 
L.  Iv.  1542),  decided  at  this  term  of  the  court,  it  was  unanimous- 
ly held  by  this  court  that  it  was  reversible  error  to  ask  the  de- 
fendant on  cross-examination  as  to  other  indictments  against 
him  than  that  on  Avhich  he  was  being  tried.  In  discssing  the 
(juestion  as  to  when  a  witness  may  refuse  to  au'^wer,  (Jrcenl. 
Ev.  ( 14(h  Ed.)  §  454,  says:  "On  this  jutint  there  has  been 
a  great  diversity  of  opinion,  and  the  law  remains  still  not  per- 
fectly sett'ed  by  authorities.  But  the  conflict  of  opinion  m&y 
be  somewhat  reconciled  by  a  distinction  which  has  been  very 
prop»'rly  m:;tle  Ik  tween  the  cases  where  tl:e  (piestion  is  not 
strictly  relevant,  but  is  collateral,  and  is  asked  under  the  lati- 
tude of  cross-examination.  In  the  former  case  tb.ere  seems  to 
be  great  absurdity  in  excluding  the  testimony  of  a  witness 
merely  because  it  will  tend  to  degrade  himself,  when  others  have 
a  direct  interest  in  that  testimony,  and  it  is  essential  to  the  estab- 
lishment of  their  rights  of  property,  liberty,  or  even  life,  or  to 
the  course  of  public  justice.  Upon  such  a  rule,  on(>  who  has 
been  convicted  for  an  offense,  when  called  as  a  witness  against 
an  accomplice,  would  be  excused  from  testifying  to  any  transac- 
tions in  which  he  had  participated  with  the  accused,  and  thus 
ihc  guilty  might  escape.     And  accordingly  the  better  opinion 


Ui\ 


riv.., 
'if 


! 


^■1 


;  i 


it 


i:!l 


;.l 


IIU 


sill' 


!l 


III 

1 

! 

;  ,   ■    ! 

.,:? 

l:ii 

3-:i 

r '■ 

i\r 

i' 

'  ■'  ■  ■ 

l»      I 

P 

544 


AMERICAN  CRIMINAL  REPORTS. 


I  ; 


V'l' 


,;:!l 


'Vt ' 


m 


seems  to  be  that,  where  the  transaction  to  which  the  witness  is 
interrogated  forms  any  jjart  of  the  issue  to  be  trieil,  the  witness 
will  be  obliged  to  give  the  evidence,  however  strongly  it  nuiy 
reflect  on  his  character."  Id.  §  456 :  "It  is,  however,  gen- 
erally conceded  that,  where  the  answer  which  the  witness  may 
give  Avill  not  directly  and  certainly  show  infamy,  but  will  tend 
to  disgrace  him,  he  may  be  com])elled  to  answer."  When  it 
does  not,  there  seems  to  be  no  good  reason  why  the  witness 
should  be  privileged  from  answering  a  question  touching  upon 
his  situation,  employment,  and  associates,  if  they  be  of  his  own 
choice, — as,  for  example,  in  what  family  he  resides,  what  is  his 
ordinary  occupation,  and  win  ther  he  is  intimately  acquainted 
with  or  conversant  with  certain  persons,  and  the  like;  for,  how- 
ever those  may  tend  to  disgrace  him,  his  position  is  of  his  own 
selection."  And  it  is  the  general  rule  elsewhere.  In  the  very 
able  and  well-considered  opinion  in  the  case  of  People  v.  Brown, 
72  X.  Y.  571,  the  court  said:  'Vl  am  of  the  ojjinion  that  tlio 
cross-examination  of  persons  who  are  witnesses  in  their  own  be- 
half when  on  trial  for  criminal  otl'enses  should,  in  general,  be 
limited  to  matters  pertinent  to  the  issue,  or  such  as  may  be 
proved  by  other  witnesses.  I  believe  such  a  rule  necessary  to 
prevent  a  conviction  for  ott'enses  by  proof  that  the  accused  might 
have  been  guilty  of  others.  .  Such  a  result  can  only  be  avoiiled 
practically  by  an  observance  of  this  rule."  The  court  there- 
fore erred  in  requiring  the  defendant  to  answer  the  questions. 

The  Commonwealth  was  also  permitted,  over  the  objection 
of  the  defendant,  to  prove  by  the  witness  Weaver  that  he  heard 
Judge  Tinsley  say  to  the  defendant:  "Jim,  I  am  glad  to  see 
you.  I  want  to  compliment  you  on  what  you  did  in  Frankfort. 
I  learned  about  you  through  my  son," — and  that  the  defendant 
did  not  open  his  mouth,  but  just  nodded,  and  passed  on.  There 
is  no  claim  that  Howard  made  any  response  to  this  remarlc,  nor 
is  there  pny  claim  that  Judge  Tinsley,  who  is  one  of  the  circuit 
judges  of  the  State,  had  any  connection  whatever  with  the  homi- 
cide of  which  the  defendant  is  accused ;  and,  while  the  testi- 
mony is  emphatically  denied  by  Judge  Tinsley,  it  was  wholly 
illegal,  and  incompetent  for  any  purpose,  and  should  have  been 
excluded. 

Another  ground  of  complaint  is  misconduct  of  the  attorneys 
for  the  prosecution  in  course  of  the  trial.  It  is  especially  coni- 
plained  that  the  Commonwealth's  attorney  pro  tempore,  in  his 


HOWARD  V.  COMMONWEALTH. 


645 


closing  argument  to  the  jury,  used  these  words :  "I  am  com- 
missioned by  Eobert  Franklin  to  say  to  the  jury  that  he  is  in 
thorough  accord  and  sympathy  with  the  prosecution,  and  that 
ho  thinks  the  defendant  guilty,  and  hopes  the  jury  will  hang 
him  higher  than  Ilaman."  It  appears  that  Kobert  Franklin, 
the  regular  Commonwealth's  attorney,  did  nut  participute  in  the 
prosecution  of  the  accused  because  of  sickness,  and  that  his  place 
was  supplied  by  the  appointment  of  the  pro  tempore  attorney 
who  used  the  language  complained  of.  Mr.  Franklin  was  not 
a  witness  in  this  case,  and,  if  he  had  been,  he  would  not  have 
btcn  permitted  to  have  expressed  an  opinion  of  the  guilt  or  in- 
nocence of  the  accused;  and  his  opinions  on  that  subject,  Avliat- 
evor  they  may  have  been,  were  wliolly  irrelevant  and  inconi- 
potent ;  and  the  facts  that  he  occupied  a  high  official  position, 
that  he  was  prevented  by  sickness  from  the  discharge  of  the 
duties  imposed  upon  him  by  law  in  connecticm  with  the  prosecu- 
tion, undoubtedly  gave  to  this  message,  communicated  to  the 
jury  by  his  substitute  in  his  closing  address,  imdue  weight,  and 
was,  under  the  circumstances,  very  prejudicial  to  the  rights  of 
the  defendant.  And  it  is  a  well-established  rule  that  it  is  error 
suflicient  to  reverse  a  judgment  for  the  court  to  suffer  counsel, 
against  the  objection  of  tlie  defendant,  to  state  facts  not  in  the 
evidence  or  pertinent  to  the  issue,  and  the  evidence  of  which 
would  have  Ix^en  ruleil  out.  See  2  Enc.  PL  &  Prac.  p.  727; 
Kennedy  v.  Com.,  77  Ky.  5300. 

One  of  the  grounds  relied  on  in  the  motion  for  a  new  trial 
made  in  the  court  below  is  that  the  ccnirt  erred  to  the  prcj\idice 
of  the  accused  in  refusing  to  sustain  his  nmtion  to  fill  up  the 
jury  box  by  persons  whose  names  were  drawn  from  the  jury 
wheel,  instead  of  directing  the  sheriff  to  sunnnon  a  special  ventre 
after  the  original  panel  of  jurors  had  been  exhausted.  This 
motion  was  supplemented  by  the  affidavits  of  quite  a  number  of 
persons,  who  stated,  in  sul)stance,  that  four  of  the  jury  who 
tried  the  defendant  had  formed  and  expressed  the  opinion  that 
he  was  guilty  before  they  were  accepted  on  the  jianel ;  and  that 
tins  information  was  not  communicated  to  the  defendant  until 
after  the  termination  of  the  trial.  While  all  of  the  statements 
contained  in  these  affidavits  are  denied  by  the  accused  juroi-s, 
and  may  have  no  just  foundation,  yet  the  fact  that  so  many  ]ier- 
sons  could  be  found  to  make  affidavits  so  circumstantial  in  their 
detail  of  facts  on  this  point  illustrates  the  great  importance,  in 

Vol.  XIII— 86 


''  ■  \  i 


:  y  Pit  \'    '■  ' 


^'■\'\\  ! 


AMERICAN  CRIMINAL  REPORTS. 


■1:1  I 


I     M 


n  case  of  this  character,  of  using  every  precaution  to  secure  dis- 
creet and  impartial  citizens  to  act  as  jurors.  Under  section 
281  of  the  Criminal  Code,  the  decision  of  the  trial  court  upon 
the  motion  for  a  new  trial  is  not  subject  to  exceptions,  and 
consequently  it  will  be  unnecessary  for  us  to  further  consider 
this  question. 

Xumerous  other  errors  are  complained  of,  but,  as  they  are 
not  likely  to  occur  again,  are  not  considered  in  this  opinion. 
But,  for  error  pointed  out  and  discussed,  the  judgment  of  the 
trial  court  is  reversed,  and  the  case  remanded  for  a  new  trial 
consistent  with  this  opinion. 

IIoBsoN,  J.  Judge  White  anu  I  conciir  in  the  opinion  of 
the  court  in  the  reversal  of  the  judgment  in  this  case  on  the 
ground  that  the  particulars  of  the  shooting  of  Baker  by  appel- 
lant should  not  have  been  admitted  in  evidence,  and  that,  as  the 
record  stands,  the  statement  of  the  attorney  for  the  State  in 
his  closing  speech  set  out  .in  the  opinion  was  ]>euuliarly  preju- 
dicial. Appellant  cannot  bo  convict(d  in  this  ease  because  he 
may  have  committed  anotlu  r  crime  of  like  character;  and  ])roof 
that  he  had  done  so,  or  even  such  an  impression,  might  seritTusly 
prejudice  him  before  the  jury,  who  might  consider  that  such 
proof  showed  he  was  the  character  of  person  who  would  commit 
such  a  deed  as  that  charged  herein.  Appellant  is  also  entitled 
to  be  tritd  by  the  jury  under  the  law  and  the  evi<lence,  and 
nothing  could  be  more  damaging  to  him  ^li-  •;  i')r  the  jury  to 
get  the  impression  that  juiblic  sentinle:•l^  .  the  effect  that 

he  wa^  ii'uilty,  and  ought  to  be  banned.  '  ..■  ii.-o  concur  in  the 
opinion  of  the  court  that  the  evidence  as  the  statomi'ut  of 
Judge  Tinsley  to  the  appellant  should  not  have  been  admitted, 
and  that  the  instruction  as  to  the  testimony  of  an  aeeomplic:> 
should  have  used  the  word  ''accomplices,"  instead  of  the  words 
''an  accomplice."  J5ut,  \inder  the  facts  of  the  case,  we  do  not 
see  that  appellant  was  seriously  prejudiced  by  either  of  these 
two  matters.  We  do  not  concur  in  that  part  of  the  opinion 
which  imdertakes  to  lay  down  the  ])roper  limits  of  cross-exam- 
ination, and  see  no  reason  for  discarding  the  settled  practice  in 
this  State,  supported  by  a  numlnT  of  decisions  of  this  court,  to 
follow  the  dictum  of  a  New  York  judge  announcing  a  rule  that 
is  not  followed  in  that  State,  and  is  contrary  to  the  great  weight 
of  modern  authority.     We  therefore  dissent  from  that  jiart  of 


HOWARD  V.  COMMONWEALTH. 


547 


re  dis- 

5C'etioii 

-,  and 
nsidcr 

^y  are 
inion. 
1'  the 
trial 


tlio  opinion.     Tlie  Chief  Justice  also  concurs  with  us  ou  this 
point. 

Payntkr,  C.  J.  (concurring  in  result). 

Two  tilings  are  as  certainly  established  by  the  evidence  in 
this  case  as  it  is  possible  to  establish  anything  by  human  testi- 
mony. One  is  that  William  Goebel  was  assassinated  while 
peaceably  ])assing  through  the  State-House  grounds  to  discharge 
liis  duties  as  a  uiend)er  of  the  Kcntuckv  senate:  the  other  that 
the  assassin  fired  the  fatal  shot  from  a  window  in  the  ])rivato 
oJHcc  of  Caleb  Powers,  the  Secretary  of  State.  Under  the  in- 
dictment, and  under  the  well-established  rules  of  practice  in 
this  State,  JauK  s  Howard  could  have  been  found  guilty  of 
murder  if  the  prfwif  showed  that  he  either  fired  the  fatal  s^hot, 
or  allied  and  alx  tte  1  another  in  doing  so.  So  the  jury  was 
authorized  to  lind  him  guilty  of  murder  if  the  evidence  war- 
ranti'd  it  in  reaching  the  conclusion  that  he  was  the  ])riucipal 
or  an  aider  and  abettor.  The  indictment  charges  that  the  ap- 
pellant, .lames  Jloward,  Henry  Youtsey,  and  others  were  guilty 
of  the  offense.  If  the  testimony  showed  that  Youtsey  fired  the 
shot,  and  the  appellant,  Howard,  was  present,  aiding  and 
alK'tting,  he  was  guilty;  if  it  showed  that  the  appellant,  How- 
ard, tired  the  shot,  and  Youtsey  was  present,  aiding  and  abet- 
ting, he  was  guilty.  Tlien  any  testimony  which  conduces  to 
show  either  of  them  to  be  a  princi])al  or  an  aider  and  abettor 
was  conij)etent.  For  tlie  purpose  of  considering  the  questions 
which  [  will  discuss  it  is  necessary  to  briefly  state  some  of  the 
evidence  offered  conducing  to  show  tlie  guilt  of  the  parties.  In 
doing  so  I  will  briefly  call  attention  to  some  of  the  testimony 
against  Youtsey  and  the  ap])ellant  Howard.  William  Goebel, 
theji  a  senator,  but  afterwards  declared  governor  by  the  Legis- 
lature, Avas  shot  at  about  11 :15  a.  m.  on  January  30,  1900.  The 
evideiu'e  introduced  by  the  appellant,  Howard,  conduces  to 
pntve  that  he  left  his  home  (Manchester,  Ky.)  on  the  morning 
of  the  iiHth  of  January,  1900,  and  rode  to  London,  Ky.,  arriv- 
ing there  at  about  2  o'clock  in  the  afternoon.  He  remained 
there  during  the  night,  and  the  next  morning  went  to  Win- 
chester, Ky.,  from  which  place  he  came  to  Frankfort,  arriving 
at  10:17  a.  m.',  about  one  hour  before  the  assassination.  The 
accused  claims  that  he  did  not  go  to  the  State-House  square 
until  in  the  afternoon  on  the  day  of  his  arrival ;  that  upon  his 


J!    ' 


1  ':■ 


Iliili 


548 


AMERICAN  CRIMINAL  REPORTS. 


arrival  he  went  to  the  Board  of  Trade  Hotel,  and  remained 
there  a  short  time,  walked  towards  the  State-IIonse  grounds, 
met  a  stranger  by  the  name  of  Robinson,  and  engaged  him  in 
conversation,  and  relumed  with  him  to  the  Board  of  Trade 
IFotel,  where  he  was  at  tiie  time  the  fatal  shot  was  fired,  and 
where  he  renniined  until  some  time  in  the  afternoon,  when  he 
went  to  the  State-House.  His  defense  is  an  alibi.  lie  claims 
that  he  was  notified  by  John  G.  White,  of  Wiuchestcr,  to  come 
(O  Frankfort  with  the  view  of  obtaining  a  pardon  for  the  killing 
of  George  ]?aker,  for  which  offense  he  stood  indicted.  Ed 
Parker  lives  at  l^ondctn,  Ky.,  and  was  on  his  Ixmd  in  tiie  case 
wherein  ho  was  indicted  for  the  killing  of  Baker,  and  also  one 
of  his  attorneys,  lie  testified  that  Howard  passed  his  office, 
while  in  lx)ndon,  on  his  trip  to  Frankfort,  but  did  not  stop  to 
see  him;  and  also  that  J.  G.  White  had  written  to  him  before 
that  time  to  do  certain  things  to  aid  Howard  in  ])rocuring  a 
pardon,  and  that  ho  had  lujt  d(.)ne  the  things  which  Wliite  re- 
quested him  to^o.  He  also  testified  that  he  did  not  sjieak  to 
Howard  while  in  London,  or  endeavor  to  have  an  interview  with 
him.  I  will  add  hero  that  Howard  says  he  thinks  he  talked  to 
Parker  in  regard  to  the  matter;  but,  if  he  did  not  talk  to  him 
then,  ho  did  not  advise  either  of  his  attorneys  of  liis  ])uri)ose  to 
come  to  Frankfort  to  get  a  pardon,  or  ask  their  aid  in  the  mat- 
ter. John  Kicketts  testified  that  he  was  in  the  agricultural 
office  on  the  dav  before  the  assassination,  and  was  in  conversa- 
tion  with  Youtsey  as  to  the  contest  that  was  then  ])ending  be- 
fore the  Legislature  for  the  office  of  governor,  wherein  William 
Goebel  was  contestant  and  W.  S.  Taylor  contestee,  and  Youtsey 
said:  **The  way  to  settle  it  was  to  put  Goebel  out  of  the  way, 
and  that  he  had  $100  of  his  own  money  to  have  it  done,  and 
he  thought  there  were  ten  or  eleven  others  that  wanted  it  done 
as  much  as  he  did;  and  he  thoughl  it  could  Ix;  done  froiu  the 
executive  building,  and  the  man  who  did  it  escape  through  the 
basement."  He  also  testified  that  15  or  20  minutes  before  the 
shooting  Youtsey  rushed  into  the  agricultural  building,  and  said 
for  some  of  them  to  come  with  him ;  that  he,  together  witli 
others,  w:ent  to  the  executive  building,  and  Youtsey  stationed 
them  at  the  foot  of  the  stairway  on  the  inside  of  the  building, 
and  told  them  that  something  was  going  to  happen,  and  for 
them  to  stand  there,  that  there  would  be  a  man  come  dovm. 
among  them,  and  for  them  to  scatter  off  together ;  that  the  wit- 


1 


uinnl 
iinds, 
iiii  ill 
rriido 
and 
11  lie 
laiiiiH 

CdlllO 

iiliii<» 
Kd 
case 

ffiec, 

np  to 

foro 


HOWARD  V.  COMMONWEALTH. 


549 


ness  realized  something  was  going  to  liapi/Mi,  and  left  the  men 
standing  at  that  place,  and  left  the  building. 

It  also  appears  that  the  stairway  where  the  men  were  sta- 
tioned was  near  the  door  leading  into  the  private  office  of  the 
Secretary  of  StaU'  from  the  hallway.  It  is  proven  by  Lewis 
Smith,  who  knew  Voutsey  well,  that  immediately  after  the 
shooting  ho  (Yontsey)  ran  down  the  stairway  which  leads  to 
the  basement  from  a  point  near  a  door  in  th(>  Secretary  of 
State's  office;  tlmt  lie  went  on  through  the  basement.  It  is 
proven  by  Ed  Thompson,  Jr.,  that  shortly  thereafter  Yontsey 
was  seen  to  enter  the  executive  building  from  the  Lewis  street 
entrance.  It  is  proven  by  Walter  Day  that  some  days  before 
the  assassination  Y'outsey  told  him  that,  if  he  could  get  $.'500, 
lu>  could  settle  the  contest.  W.  II.  Culton  testified  that  some 
time  before  the  assassination  he  saw  Yontsey  with  a  box  of  car- 
tridges in  his  hand;  that  he  told  him  he  had  a  scheme  by  which 
ho  thought  he  could  kill  Goelx>l,  and  slujwed  him  a  cartridge, 
and  said  he  thought  it  would  be  the  thing  to  do  it  with;  that  he 
had  a  key  to  the  Secretary  of  State's  office;  that  he  could  get  in 
whenever  he  wanted  to;  that  he  had  examined  a  window  in 
that  office,  and  that  he  could  be  killed  from  that  window,  and  no 
one  would  know  anything  about  it;  that  he  could  pull  the  blind 
down  a  certain  distance,  fire  the  shot,  and  get  out  through  the 
basement ;  and  said  that  he  had  smokeless  cartridges  that  fi.red 
steel  balls,  and  oi)ene(l  a  Imix  and  showed  them. 

The  window  blinds  in  tb.c  private  otHce  of  the  Secretary  of 
State  were  discovered  to  be  down  immediately  after  the  shot 
was  tired.  Wharton  Golden  testified  that  he,  John,  and  (^ileb 
Powers  left  for  Louisville  in  the  morning  of  the  day  of  the 
assassination,  and  that  John  I'owers,  a  brother  of  Caleb  Powers, 
had  given  Yontsey  a  key  to  a  door  in  the  Secretary  of  State's 
office.  Some  of  the  testimony  tending  to  establish  the  guilt  of 
Howard  is  as  follows:  W.  IL  Culton  testified  that  during  the 
evening  of  the  day  of  the  assassination  ho  met  Jim  Howard  in 
the  agricultural  office,  and,  after  greeting  him,  he  sai<l  to  How- 
ard he  was  glad  to  see  him,  and  asked  him  when  he  came,  and 
he  laughed,  and  said,  "I  have  been  here  a  week,"  and  Culton 
said,  "I  have  never  seen  you."  He  again  laughed,  and  said,  ''I 
know  that."  Afterwards  they  were  in  the  Secretary  of  State's 
office  together,  and  Culton  says  while  they  were  standing 
there  Howard  pulled  out  some  cartridges  in  his  hand,  and  said, 


Mi! 


\m 


Hi 


m 


ii 


n  i 


pjiii,! 


i 


[  J- !  ■  f 


3 


li 


550 


AMERICAN  CRIMINAL  REPORTS. 


i-  ■  ■! 


"Tliosc  are  45  pistol  cartridges,"  niul  then  put  them  back,  and 
pulled  out  another  cartridge,  and  said,  "Tliat  is  a  Winchc.-tci 
cartridge,  a  Winchester  45,  and  shoots  siu<»keless  powder."  lie 
asked  hini  winit  he  meant  hv  it,  and  he  said  nothing'.  Witness 
further  testified  that  Howard  said,  "Goel)el  would  die,  but  said, 
if  there  had  Ikhmi  something  or  other  on  the  cartridge,  he  would 
have  died  iunncdiately, — something  of  that  kind, — but  said  Ik 
would  die  anyhow."  Jle  also  testified  that  Howard  told  him 
that  lie  had  been  at  the  (^ipital  Hotel,  where  (jiocl)el  was  car- 
ried after  he  was  shot,  and  in  speaking  of  Cioelnd  he  said,  "Danui 
him,  he  will  die  anyhow."  The  iviiness'  also  testified  that  How- 
ard ])ointe(l  to  the  tree,  and  said:  '*  'Some  guys  didn't  under- 
stand'; but,  ho  said,  *J)o  you  see  that  tree  ^  If  you  want  to 
make  a  dead  shot  at  a  moving  object,  take  a  sight  on  that  tree, 
and  when  the  object  passes  by  you  will  make  a  dead  shot  every 
time.'  "  This  latter  statemejit  is  im|)ortant,  as  the  body  of  the 
deceased,  at  the  time  the  shot  was  fired,  was  in  line  with  a  hack- 
berry  tree  viewed  from  the  windows  in  the  (tfKce  of  the  Secretary 
of  State.  The  witness  also  testified  that  Howard  said,  ^"lle  had 
always  heard  Jack  ("hinn  was  considered  a  brave  man,  but  yon 

ought  to  have  seen  that  son  of  a  h run  when  (hat  shot  was 

fired  out  there";  whereupon  the  witness  asked  him  how  he 
knew,  and  Howard  replied,  "Don't  ask  nu;  any  fool  questions." 
Jack  C'hinn  was  with  Goelnd  when  he  was  shot,  Wharton 
Golden  testified  that  on  the  morning  of  the  JJlst  of  Jai'.v.ary, 
11)00,  he  had  a  conversation  with  Jim  Ibtward  in  regard  to 
Jack  Chinn,  in  which  Howard  said,  "I  understand  Jack  ("hinn 
is  a  great  race  Jior.-e  starter,  but  he  never  started  a  Innse  that 
could  run  as  fast  as  he  can";  whereujion  Golden  asked  him  bow 
he  knew,  and  Howard  rejjlied,  "I  ought  to  know;  be  was  with 
Goel)td."  He  also  testified  that  on  the  same  morning  Howard 
expressed  a  desire  to  join  the  military  company  of  wiiich  John 
Powers  was  captain.  John  Powers  agreed  to  it,  and  sai<l  for 
Howard  to  get  some  blaidicts,  but  Caleb  Powers  advised  them 
not  "to  take  Jim  into  the  com])any."  James  S.  Stiibblefield 
was  deputy  assessor  of  Clay  county  iinder  Howard,  and  some 
two  or  three  days  Ix'forc  Howard  left  for  Frankfort  be  had  a 
conversation  with  him,  in  which  he  said:  "Jim,  I  l)elieve  I 
will  write  down  and  get  Governor  Taylor  to  give  me  a  captain's 
place  to  get  uj)  a  company  here,  and  take  a  number  of  men  down 
there  to  fight.     Jim  said,  'You  can't  fight;  you  can't  stand  up' ; 


<'k,  niid 

lcllC,-t(M 

lie 

Vitncss 

Won  It) 
■'aid  Ji,. 
'•1  Jiiiii 
ii.s  ciir- 

t  JI..\v- 

luidcr- 
ant  to 

It  tree, 

ovvry 

<tf  flic 

Iiiit'k- 

J'cfjirv 

I("  hail 

"f  \<)U 
it  WHS 

m  lie 
ioiis." 
lar/on 
i!!;irv, 
rd  to 
'liiim 
that 


nn 


HOWARD  V.  COMMONWEALTH. 


niul  snid,  *I  nni  nttondiiif?  to  that.  I  am  ^fotti:ip'  letters  ovcry 
nnco  in  a  whiio  from  Tavlor,  and  I  will  att<'nd  to  that.'"  llv 
testified  that  on  Howard's  return  i'rom  Frankfort  he  eaiiic  to 
his  house  one  ni.;iit  to  get  the  witness'  son  to  take  a  horse  to 
London.  Drvinf?  the  time  he  was  there  witness  remarkeil  to 
him  that:  "You  have  had  a  pateh  of  fun  at  Frankfort,"  and 
he  said,  "Yes,  we  have  had  hell,  and  eleaned  up  the  p.utcli." 
Witness  then  said,  ".litn,  what  do  vou  mean  hy  cleaning'  up  the 
Itateh?"  He  said,  "Yon  know  whenever  I  look  throu,!j;li  the 
sijjhts  of  my  ])istol  or  jynn  I  always  jj^et  meat  or  money, — one; 
and,  by  God !  this  time  I  have  got  both." 

Witness  testified  that  he  had  a  subsecjnent  eonversation  with 
Howard,  and  gives  it  as  follows:  "  Mini,  I  have  been  studying 
about  the  conversation  we  had  the  other  night.  Do  you  mean 
to  say  you  killed  Goebel  ?'  ]Ie  said:  'By  Godl  I  mean  just 
what  I  said.'  I  said  then:  Mini,  you  ought  not  to  talk  3D 
much.  You  will  get  yourself  in  trouble.'  He  said:  *By(iod! 
my  friends  won't  go  baek  on  me,  and,  if  they  want  me,  let  tiiem 
eome  and  get  me.  By  God!  live  hundred  men  can't  take  me 
out  of  this  town.'  " 

Ilol)ert  Allen  testified  that  he  had  a  eonversation  with  Howard 
in  regard  to  the  assassination  of  (Joebel,  in  which  lEoward  said, 
"I  know  the  identical  man  that  did  it,  and  thank  the  God  above 
for  it."  Afterwards  Howard  came  to  this  witness,  and  wanted 
to  explain  the  previous  conversation  which  they  had  bad,  and 
said  that  he  meant  to  sav  that  he  knew  who  had  indicted  him, 
and  he  thanked  the  God  above  for  it.  This  explanation  secMus 
to  have  been  mad(?  from  the  fact  that  some  one  Avho  Avas  present 
when  he  had  the  first  conversation  had  suggested  that  be  ought 
not  to  have  said  what  he  did  to  the  witness.  John  L.  flones 
was  intntduced  as  a  witness,  who  testiiied  tliat  on  the  morning 
after  the  shooting  of  Goebel,  Jim  ] Toward  came  to  where  lie  was 
cooking  breakfast,  and  attracted  bis  attention  by  giving  him  a 
slap  on  the  back,  and  in  the  conversaticm  the  witness  told  liim 
there  was  nothing  in  the  shooting  of  Goelxd,  and  he  rejjlied  tbero 
was, — "that  he  was  shot  by  a  damned  dead  shot."  The  witness 
testified  that  after  the  death  of  GocIkjI  he  had  anotlicr  conversa- 
tion witli  Howard,  in  which  he  said,  "Didn't  I  tell  you  be  Avas 
shot  by  a  dead  shot  f '  and  further  said  that  "Avhenever  he  shot 
be  shot  to  kill." 

C.  T.  Jones,  son  cf  John  L.  Jones,  testified  that  HoAvard 


I, 

Hit' 


I  1! 


« i  ■  ■ 


'I :'  i 


1 

i  ■'' 

l^^i 

ij 

i  * 

i 

1 

il! 

■ 

,4 
|i        t, 


iJ 


552 


AMERICAN  CRIMINAL  REPORTS. 


8ni(l  t(»  him,  in  rcaponsp  to  n  suggestion  that  (ji(H'l)ol  was  not  nliot, 
"^Vs,  ho  wna,  and  ho  wan  shot  a  (U'adcncr."  flanics  F.  Dailcy, 
Charles  Howard,  and  Jv.  ().  Armstrong  testified  that  a  few  miii- 
nt(s  after  the  shooting  Jim  Howard  and  some  other  men  stood 
on  the  steps  of  tiie  ex(  cutive  huihling  (some  of  whom  had  gnu-* 
in  their  hands)  for  the  pnrpose  of  preventing  any  one  from  en- 
tering that  huihling.  Daihy,  Jloward,  and  Armstrong  reeog- 
ni/.e<l  the  defendant,  Howard,  as  Ining  one  of  the  men  standing 
on  the  fteps  at  the  time  stat( d.  K.  T.  Lillard,  Jr.,  testified  to 
the  similarity  in  the  appearance  of  the  defendant,  H(»ward,  and 
one  of  the  men  whom  he  had  seen  on  the  stepn  of  the  executive 
hnilding;  that  the  man  he  had  taken  to  Ik-  ilim  Howard  was  a 
man  with  a  east  in  one  of  hid  vyvn,  hut  it  <lid  not  appear  so 
marked  at  the  time  hv  testitied  as  on  tlie  day  he  saw  liim  on  the 
steps.  ]iownuin  (Jainis  and  JJeu  Kake  testitied  tiuU  shortly 
after  the  sliooting  they  saw  a  man  jumj)  over  the  fence;  hnck  of 
th(>  executive  hnilding  into  Clinton  si  net,  and  go  down  that 
street;  that  they  recogniizid  the  defendant,  Howard,  as  heiiig 
the  man  whom  they  had  seen.  These  witnesses  all  testitied  that 
he  had  a  (hirk  or  hrown  stid>l)y  mustache  at  that  time. 

The  defendant  did  not  otl'er  anv  witnesses  who  said  tliev  were 
present  at  the  time  Dailey  and  others  testitied  that  the  defend- 
ant, Jioward,  was  on  the  steps  of  the  executive  hnilding.  This 
testinumy  is  sought  to  Ix'  ini])eached  hy  the  testimony  of  two 
v\'itn(sses  who  sav'  thai  Howard  was  in  the  ollice  of  the  JJoard 
of  Trade  Hotel  wlien  the  sliot  was  fired,  and  also  hy  the  testi- 
mnny  of  some  of  Howard's  accpmintances,  to  the  effect  that  he 
liiid  not  iK'en  wearing  a  mustache  for  some  time  lK>fore  he  came 
to  Frankfort.  The  testimony  of  these  witnesses  that  Howard 
had  not  Ix^eu  wearing  a  mustache  nniy  he  substantially  true,  and 
still  the  jury  may  not  have  concluded  that  it  imi)eached  the  testi- 
mony of  the  witnesses  oli'ered  hy  the  Conunonwealth  to  show 
that  ho  was  at  the  executive  building  at  the  time  of  the  shooting. 
It  may  have  been  inferred  by  the  jnry  that  a  few  days'  growth 
of  !)( ard  gave  him  the  aj)p(arance  of  having  a  short,  stubby 
mustache  at  the  time  the  witnesses  for  the  (V)nnnonwealth 
clainu'd  to  have  seen  him  on  the  steps  of  the  executive  building. 
One  witness  for  the  Commonwealth  testified  that  on  the  night 
following  the  shooting  he  saw  the  accused,  llowanl,  and  he  had 
il'.v  a])pearance  of  having  Ix^en  freshly  shaved.  The  Common- 
wealth introduced  two  or  three  witnesses,   who  testified  that 


HOWARD  V.  COMMONWEALTH. 


553 


I  that 


were 

■t'ciid- 
This 

f  two 


IK  itlicr  Howard  nor  his  alibi  wituossos  were  in  the  ulHce  of  the 
IJoanl  of  Trade  Hotel  at  the  time  the  shcjt  was  tired.  The  jury 
iiii/iht  have  reasonably  eoneluded  that  the  evidence  otTcred  to 
establish  the  alibi  was  eonipletely  destroyed  by  the  evidence  of 
the  ("omnionwealth.  The  jnry  had  the  ri^dit  to  draw  any  rea- 
sonali'e  inference  that  could  have  been  drawn  from  th(!  state- 
nient  which  llowanl  made  that  "he  remained  away  from  the 
Statc-llouso  until  late  in  tlie  afternoon  on  the  day  of  the  shoot- 
ing." The  jury  may  have  re^'arded  the  statement  as  b(>infr  dis- 
credited from  the  fact  that  Howard  had  reason  to  believe  he  bad 
friends  at  the  State-House,  and  naturally  would  have  pme  there 
on  that  account,  and  also  in  regard  to  the  business  .vbich  ho 
claims  brought  him  to  Frankfort.  The  jury  may  have  attached 
some  importance  to  the  fact  that  Caleb  J\)wer8  objected  to  him 
joining  Jcbn  L.  ]*owers'  comjiany  on  the  morning  after  the 
assassination.  It  is  elaiined  that  the  testimony  of  .John  L. 
Jones  is  not  worthy  of  credit,  because  he  had  been  in  the  peni- 
tentiary on  two  occasions  for  numslaughter,  and  that  be  had 
been  looking  up  testimony  for  the  prosecution  on  promise  that 
he  would  be  paid  for  his  services.  It  is  claimed  that  Stubble- 
field's  testimony  was  impetfched  by  proof  of  bad  character,  and 
by  i)roof  that  ho  had  umkIc  statements  inconsistent  with  those 
nuide  upon  the  witiu'ss  stand.  Stubblefield  bad  been  a  school 
^teacher,  deputy  sheriff,  and  deputy  county  assessor  under  the 
accused,  Howard.  He  states  the  circimistances  under  which  he 
disclosed  the  statements  which  he  claims  Howard  made  to  him. 
He  went  to  Cincinnati,  and  it  was  reported  in  Clay  County. that 
he  was  nuiking  statements  showing  Howard's  connection  witli 
the  killing  of  Goelftd.  At  this  Howard's  friends  became  in- 
censed, and  the  witness  was  advised  to  leave  the  country,  or  ho 
would  be  killed.  After  this  he  says  he  concluded  to  tell  what 
Howard  stated  to  him,  but  says  he  had  not  done  so  previous  to 
that  time.  His  own  testimony  shows  that  he  did  not  cotulemn 
Howard  for  killing  Goebel,  if  he  did  it,  but  on  the  contrary,  at 
the  time  of  tlu;  conversation  and  afterwards,  would  have  pro- 
tected him,  if  possible,  from  prosecution  therefor.  Jones  and 
Stubblefield  are  the  kind  of  men  to  whom  one  might  suppose 
Howard  would  give  his  c(mtidence  if  he  had  killed  Goebcl.  He 
rever  would  have  made  such  an  admission  to  a  man  in  his  neigh- 
borhood who  abhorred  nmrder,  and  believed  that  murderers 
should  be  punished.     The  jury  that  tried  Howard  would  not 


n ! 


f 


r  ♦  ,  1    ■ 


:! 


I  lit 


554> 


AMERICAN  CRIMINAL  REPORTS. 


I    il! 


have  subjected  itself  to  the  charge  of  faulty  reasoning  if  it  had 
concluded  that  Jones  and  Stubbletield  were  not  first-class  citi- 
zens, but  were  the  kind  of  men  that  Howard  would  have  nat- 
urally selected  for  the  purpose  of  imparting  the  fact  that  he 
had  killeil  Gm^lx'l. 

I  have  called  attention  to  the  leading  facts  of  the  case  with 
the  view  (if  nhdwiiig  that  an  error  slightly  prejudicial  to  the  de- 
fendant wmild  not  justify  a  reversal  of  this  case,  because  the 
Code  of  Practice,  which  confers  jurisdiction  upon  this  court  to 
review  the  iu'tion  of  the  lower  court  in  criminal  cases,  gives  tlie 
court  the  jiowt  r  to  determine  from  all  the  facts  in  the  case 
whetlicr  the  su])stantial  rights  of  the  accused  have  been  pi'cj- 
udiccil  by  tlic  actinn  of  the  lower  court.  On  the  examination 
in  chief,  tlie  accused,  Howard,  desired  to  show  the  purpose  i\  r 
which  be  came  to  Frankfort,  and  to  da  so  the  following  (pies- 
tions  were  pro])ouniled  by  his  attorney,  and  the  following  an- 
swers were  made  :  "Q.  When  were  you  here  again  ?  A.  I  came 
here  on  the  oOrli  of  January.  Q.  Is  there  an  indictment  pend- 
ing against  you  ^  A.  Yes,  sir;  I  am  indicted  in  Clay  connly. 
Q.  For  what  i  A.  F'or  killing  George  Baker.  ...(}. 
What  did  you  come  down  here  on  the  30tli  for  l  A.  I  came  In  ix- 
to  try  to  get  a  pardon.  Q,  For  what?  A.  For  the  killing  of 
George  Uakcr."  On  cross-examination  the  witness  was  asked: 
*'Q.  \\'as  not  lie  an  old  man,  unarmed,  with  his  hands  up,  lug- 
ging you  for  God's  sake  to  spare  his  life?  A,  I  could  not  say 
whether  he  was  unarmed  or  begging.  I  do  not  remeudxr  very 
much  about  him."  It  is  insisted  that  this  question  was  an  im- 
proper one,  and  the  answer  thereto  was  prejudicial  to  the  de- 
fendant. For  the  purposes  of  what  I  will  say  with  rereniicc 
thereto,  I  will  concede  that  it  was  an  improjier  question  ;  but 
whether  it  was  ])rejudicial  or  not,  in  view  of  the  facts  deve'ojK d 
in  the  record,  is  entirely  a  different  question.  The  accused 
testitieil  that  he  was  indicted  in  the  Clay  (Mrcuit  Court;  that 
he  came  to  Frankfort  to  get  a  pardon  for  ''the  killing  <if 
Baker."  It  will  l)e  observed  that  Howard  testified  that  he  had 
killed  Baker;  that  he  was  indicted  for  it;  that  his  plea  was 
"emotional  insanity."  He  did  not  claim  that  he  had  killed 
Baker  in  self-defense,  but  that  he  had  d(mc  so  when  he  Avas  in- 
sane. On  cross-examination  of  two  or  three  witnesses  by  How- 
ard's attortiey  the  witnesses  were  made  to  state  substantially 
that  the  accused  had  killed  Baker.     The  jury  had  before  them 


ii 


HOWARD  V.  COMMONWEALTH. 


555 


tostiniony  that  he  had  killed  Baker,  that  he  was  indicted  for 
it,  that  he  had  no  defense  except  emotional  insanity,  and  that 
he  had  applied  to  Governor  Taylor  for  a  j)ardon  for  the  killing 
of  Baker;  thns  calling  tne  jury's  attention  to  the  fact  that  he 
was  unwilling  to  be  tried  by  a  jury  of  his  peers  on  the  charge  of 
killing  Baker.  Kow,  with  all  these  facts  before  the  jury,  to- 
gether with  the  facts  that  I  have  recited  above,  I  do  not  think 
the  answer  which  he  made  to  the  objectionable  question  prej- 
udiced liini  in  the  mind  of  the  jury.  The  answer  was  not  an 
acknowledgment  that  he  had  killed  Baker  under  the  circuni- 
stance  indicated  by  the  question,  for  he  said  he  coidd  not  re- 
niend)er  very  much  about  IJaker,  which  answer  is  consistent  with 
his  j)lea  of  emotional  insanity. 

It  is  urged  that  the  testimony  of  one  W.  D.  Weaver,  late  su- 
perintend(^nt  of  schools,  in  relation  to  what  Judg(>  Tinslpy  said 
to  the  accused,  Howard,  is  inconipftent  and  prejudicial.  He 
tcstilled  in  regard  to  Howard's  return  from  Frankfori,  and  what 
took  jilace  in  the  court  house  at  Ix)ndon.  He  said  Howard  came 
in,  shook  hands  with  some  present,  passed  on  to  Judge  Tinsley, 
and  the  judge  said,  "Good  morning,  Jim,"  reaching  hi^^  hand, 
and  he  said,  'Vl  am  glad  to  see  you,"  and  they  greeted  each 
other.  The  judge  said,  "Jim,  I  want  to  compliment  you  on 
•hat  yon  did  in  Frankfort."  Following  the  f(iregoing  state- 
ment the  witness  was  asked,  "What  did  Jim  Howard  do  f  He 
answered,  "He  nodded  his  head,  and  passed  on.  Howard  did 
not  open  his  mouth."  From  the  testimony  of  Weaver,  Judge 
Tinslev  did  not  mention  anvthing  which  Howard  had  done  at 
Frankfort.  He  simply  said  he  heard  of  him  throngh  his  son, 
who  was  a  mend)er  of  a  military  com])any  at  Frankfort.  The 
employment  (if  the  Avord  "compliment"  would  indicate  that 
Tinsley  desired  to  commend  him  for  some  act.  If  llowurd  had 
accommodated  the  son  of  Judge  Tinsley  while  at  Frankfort,  l:e 
never  would  have  thanked  him  by  saying  that  he  desired  to 
compliment  him  for  what  he  had  done.  There  is  notiiing  ])roven 
in  this  record  to  show  that  Howard  did  anything  at  Frankfort 
worthy  of  mention  unless  the  testimony  tends  to  connect  him 
with  the  assassination  of  Goebel.  It  is  true,  the  witness  says 
that  Howard  said  nothing,  simply  nodded  his  head.  Tlie  nod 
did  not  Indicate  that  he  was  adverse  to  receiving  words  of  com- 
pliment from  Judge  Tinsley,  but,  on  the  contrary,  it  would 
imply  that  he  was  willing  to  accept  the  compliment  which  the 


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judge  gave  him  for  what  he  did  at  Frankfort.  It  is  but  just 
to  Judge  Tiuslc;)  to  say  that  he  denies  he  used  the  Lingiuige  im- 
puted to  him  by  the  witness  Weavor;  but,  in  my  opinion,  the 
jury  should  be  allowed  to  determine  what,  if  any,  weight  should 
be  given  to  this  testimony.  If  Howard  had  failed  to  nod  his 
head,  then  I  would  say  that  the  testimony  was  incompetent. 

While  I  think  the  instruction  on  the  subject  of  the  elYeet  to 
be  given  the  testimony  of  accomplices  could  have  In^eii  somewhat 
improved  by  a  little  change  in  its  })hrase()logy,  yet,  for  the 
reasons  which  are  given  in  the  dissenting  opinitm  this  day  de- 
livered in  the  case  of  Foircrs  v.  Com.,  110  Ky.  380,  2:^  Ky.  Law 
Rejjr,  1807  ((!1  S.  W.  735),  I  do  not  think  it  was  misleading 
to  the  jury. 

There  is  another  question  in  the  case  that  has  given  me  some 
concern,  and  that  is  the  objectional)le  remarks  made  by  ^Ir. 
Williams,  in  his  closing  argument  to  the  jury,  with  refi  ivnce 
to  thc"()i)inion  of  the  Commonweahh's  attorney,  ^Ir.  Franklin, 
as  to  ihe  guilt  of  the  accused,  and  the  penalty  which  should  h«' 
inflicted  upon  him.  Whatever  the  o}tinion  of  the  court  may  be, 
or  my  individual  opinion,  as  to  the  guilt  of  the  accused,  he  is 
entitled  to  have  a  fair  trial,  and,  as  I  cannot  determine  with 
reasonable  certainty  as  to  what  might  have  been  the  effect  of  the 
remarks  on  the  mind  of  the  jury,  I  do  not  dissent  from  the  enn- 
clusiou  of  the  court  that  the  defendant  is  entitled  to  a  new  trial. 


State  v.  Gkorok. 


im 


;ii 


4  Pennewill  57—54  Atl.  Rep.  745. 

Infancy:    Presumption  of  incamcity  to  commit  crime,  etc. — Inaccuracy 
of  State  V.  Jackson,  ;J  Pennetcill  t'>,  as  reported. 

»   1.  An  Infant  under  the  aRc  of  seven  years  Is  Incontrovertibly  pre- 
sumed incapable  of  committing  any  crime. 

2.  An  infant  between  the  ages  of  seven  and  fourteen,  Is  presumed  in- 

capable of  committing  a  crime;  but  such  presumption  may  be 
removed  by  evidence  showing  intelligence  and  malice.  The  pre- 
snmi)tion  of  incapacity  grows  wealier,  as  tlie  age  advances 
towards  fourteen. 

3.  fttate  V.  Jackson,  3  Pennewill  15,  inaccurate  In  stating  the  law. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


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STATE  V.  GEORGE. 


557 


Court  of  General  Sessions  of  Delaware,  New  Castle,  IMay 
22nd,  li)02.     Present:     Lore,  C.  J.,  Grul>b  and  Pennewill,  ,IJ. 

Ezekiel  R.  George,  charged  with  feloniously  si-tting  tire  to 
and  burning  a  barn.     Tried  before  a  jury  and  convicted. 

Herbert  II.  Ward,  Attorney  General,  for  the  State. 

LoRK,  C.  J.,  charging  the  jury : 

Gentlemen  of  the  Jury: — Ezekiel  R.  George  is  charged  with 
feloniously,  willfully,  and  maliciously  si'ttiiig  fire  to  and  burn- 
iug  the  barn  of  Sanuiel  Logan,  in  .Mill  Creek  hundred,  this 
county,  on  or  about  the  7th  day  of  April,  1902. 

It  is  admitted  that  the  prisoner  is  under  11  years  of  age;  and, 
where  a  prisoner  is  thus  a  mi;; or,  it  is  incumbent  upon  the 
State  to  show,  lirst,  that  the  accused  connnitted  the  act  charged, 
and,  secondly,  that  he  did  it  with  a  guilty  knowledge  that  he 
was  doing  wrong.  That  guilty  knowledge  may  be  shown  by 
the  ajjparent  intelligence  of  the  accused  minor,  and  from  his 
acts  and  conduct  in  connection  with  the  crime,  and  any  other 
circumstance  that  will  throw  light  upon  that  subject. 

The  principle  of  law  governing  cases  of  this  kind,  Avhere  the 
person  charged  is  an  infant,  is  very  clearly  stated  in  3  Gr(>en- 
leaf  on  Evidence,  §  4,  as  follows:  "With  respect  to  infants, 
the  period  of  infancy  is  divided  by  the  law  into  three  stages. 
The  tii'st  is  the  period  from  the  birth  until  seven  years  of  age, 
during  which  an  infant  is  conclusively  ])resunied  incapa])le  of 
commit  ling  any  crime  whatever.  The  second  is  the  period  from 
seven  until  fourti'en.  During  this  peri(i(l  the  ]n'esum])tion  c(jn- 
tinues,  but  is  no  longer  conclusive,  and  grows  gTadually  weaker 
as  tiie  age  advances  towards  fourteen.  At  any  stage  of  this 
period  the  ])resumpti(m  of  incajiacity  nniy  be  removinl  by  evi- 
dence sliowing  intelligence  and  malice;  fur  mnlltia  siipplct  aeta- 
iein;  but  the  evidence  of  that  malice  which  is  to  supply  age 
ought  to  be  strong  and  clear  beyond  all  reasonable  deubt. 
.  .  .  The  third  connnences  at  fourteen  ;  the  jiresumption  of 
incapacity  arising  from  youth  l)eing  then  entirely  gone,  and  all 
persons  of  that  ago  and  upwards  lieing  ])resumed,  in  point  of 
understanding,  eai)able  of  coumiitting  any  crime,  until  the  con- 
trary be  ])roved." 

You  luave  the  law  as  thus  stated  by  Greenleaf,  and  if,  under 
the  eirctuustances  of  tliis  case,  you  believe  that  the  ]U'isnner  com- 
mitted the  offense,  and  that  at  the  time  he  had  sutlicient  intelli- 


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lit 


558 


AMERICAN  CRIMINAL  REPORTS. 


grnce  to  know  tliat  he  was  doing  a  wrong  act,  and  did  it  will- 
fully and  maliciously,  then  your  verdict  should  Ix-:  Guilty  in 
manner  and  form  as  he  stands  indicted.  If  you  should  have 
a  reasonable  doubt  ui)on  any  of  the  material  elements  of  the 
crime  charged,  your  verdict  should  be:  !Xot  guilty.  The  doubt 
should  enure  to  his  acquittal. 

The  court  charges  you  thus  with  respect  to  the  possession  of 
criminal  capacity  because  we  find  in  the  ease  of  Stale  v.  Jacksoti, 
'.]  Peuuewill,  15,  50  Atl.  270,  that  the  law  is  inaccurately  s^tated, 
thrf)Ugh  inadvertence,  and  we  take  this  method  of  correction. 

\'erdict,  "Guilty,"  with  a  recommendation  to  the  mercy  of 
the  court. 


Note  (By  J.  F.  G.). — The  court  correctly  states  the  general  rule  of 
law  applying  to  infants  charged  with  crime;  however,  that  part  of 
the  charge,  which  states  that,  "the  presumption  cf  Incapacity  may  be 
removed  by  evidence  showing  Intelligence  and  malice,"  was  doubtless 
not  Intended  as  a  statement  of  a  general  rule;  but  as  applying  to  a  case 
v.here  malice  was  an  essential  element  of  the  crime  charged.  In  some 
cases  the  test  might  be  that  of  intelligence*  and  business  experience 
while  in  others  a  knowledge  of  rights  of  property.  In  each  the  proof 
should  show  the  infant  possessed  of  sufficient  capacity  to  commit  the 
cffense  charged. 

Upon  the  general  doctrine  see:  1  Hale's  Pleas  of  the  Crown,  16-29; 
1  Russell  on  Crimes,  1-lG;  Roscoe's  Criminal  Evidence,  777;  1  McClain 
rn  Criminal  Law,  Sections  H'J-luS;  Clark's  Criminal  Law,  Sections 
2G-27;  4  Blackstcne's  Commentaries,  22. 

In  State  v.  Adams,  7G  Mo.  355,  4  Amer.  Crlm.  Rep.  392,  the  court 
held  that  the  presumption  of  incapacity  protects  the  infant  unless  over- 
come by  strong  and  clear  evidence,  beyond  all  reasonable  doubt. 

The  ca.se  Angelo  v.  People.  9G  111.  209,  is  a  valuable  case,  not  only  on 
thir,  question  but  on  any  other  which  will  receive  attention  in  j.  future 
volume  of  these  reports.    We  give  the  oi)inion  in  full  as  follows: 

Mr.   Justi'e  W.m.keb  delivered   the  opinion  of  the  Court: 

At  the  August  term,  1S78,  of  the  Morgan  Circuit  Court,  the  grand 
jury  presented  an  indictment  against  ,Tchn  Angelo,  then  about  seventy- 
tight  years  of  age,  and  his  son,  Theodore  Angelo,  about  eleven'  years 
cf  age,  for  the  murder  of  Isaac  Hammill.  A  trial  was  had  at  the  fol- 
lowing November  term  of  the  court,  resulting  in  the  acqalttal  of  John, 
on  the  ground  of  insanity,  and  the  conviction  of  Theodore  of  man- 
Elau;:?hter,  and  the  jury  fixed  the  term  of  his  imprisonmotit  in  the  peni- 
tentiary at  six  years.  A  motion  for  a  new  trial  by  Theodore  was  en- 
tered, but  overruled  by  the  court,  and  he  was  sentenced  to  the  Reform 
School  for  four  years,  and  he  prosecutes  errcr,  and  brings  the  record 
to  this  court,  and  urges  a  reversal,  on  several  grounds. 

The  statute  has  provided,  by  section  282  of  the  Criminal  Code,  that 


STATE  i\  GEORGE. 


559 


V.  person  shall  be  considered  of  sound  mind  who  Is  neither  an  idiot  ncr 
lunatic,  nor  affected  with  insanity,  and  who  has  arrived  at  the  age  of 
fourteen  or  before  that  age  if  such  person  knows  the  distinction  be- 
tween good  and  evil.  The  283d  section  provides  that  an  infant  under 
ten  years  of  age  shall  not  be  found  guilty  of  any  crime  or  misde- 
meanor. 

In  Great  Britain  the  lowest  possible  period  fixed  by  law  at  which  an 
infant  could  be  convicted  for  a  crime,  was  seven,  whilst  our  statute 
has  fixed  the  period  at  ten  years.  In  both  countries  fourteen  is  the 
period  after  wliich  the  law  presumes  capacity,  without  proof  of  knowl- 
edge of  good  and  evil. 

Blac'.stcne,  vol.  4,  p.  23,  says:  "Under  seven  years  of  age,  indeed, 
an  infant  cannot  be  guilty  of  felony;  for  then  a  felony  discretion  Is 
almost  an  impossibility  in  nature."  He  further  says  that  convictions 
have  been  had  of  infants  between  seven  and  fourteen; — "But  in  all 
such  cases  the  evidence  of  that  malice  which  i.s  to  supply  age  ought  to 
be  strong  and  clear  beyond  all  doubt  and  contradiction." 

In  Bi-ooni's  Legal  J.Tax.  pp.  232-3,  it  is  said:  "With  regard  to  per- 
sons cf  immature  years,  the  rule  is,  that  no  infant  within  the  age  of 
seven  years  can  be  guilty  of  felony,  or  be  runished  for  any  capital  of- 
fense; for,  within  ihat  age,  an  infant  is  by  presumption  of  law  cloli 
incapa^,  and  cannct  be  endowed  with  any  discretion,  and  against  thifc 
presumption  no  averment  shall  be  received.  This  legal  Incapacity, 
however,  ceases  when  the  infant  attains  the  age  of  fourteen  years,  after 
which  period  his  arts  become  subject  to  the  same  rule  cf  construction 
as  those  cf  any  ether  person." 

"Between  the  ages  of  seven  and  fourteen  years  an  infant  is  deemed 
prima  facie  to  be  doli  incapax;  but  in  this  case  the  maxim  applies  ma- 
litia  supplet  actatem — malice  (which  is  here  used  in  its  legal  sense, 
and  moans  the  doing  of  a  wrongful  act  intentionally,  without  just  cans:; 
or  CXCUS3),  supplies  the  want  cf  mature  years.  Accordingly,  at  the  age 
above  mentioned,  the  o  dinary  legal  presumption  may  be  rebutted  l;y 
strcng  and  pregnant  evidence  cf  mischievous  discvotion;  for  the 
capacity  of  doing  ill  or  contracting  guilt  is  not  so  much  measured  by 
years  and  days  as  by  the  strength  of  the  delinquent's  understanrtin-^ 
and  judgment.  In  all  such  cases,  hov.-ever,  the  evidence  of  malice 
ought  to  be  strong,  and  clear  beyond  all  doubt  and  contradiction." 
See  Archbold's  Grim.  Plead,  pp.  11  and  12,  where  the  same  rule  is  an- 
nounced.    Nor  are  we  aware  of  any  opposing  authority 

There  is  uncontradicted  evidence  in  the  record  that  plaintiff  in 
error  was  little  more  than  eleven  years  of  age  when  the  homicide  was 
committed.  This  evidence  was  not  contradicted,  but  was  virtually 
conceded  by  the  eighth  instruction  asked  and  given  for  the  People.  If 
this  was  true,  and  the  evidence  tended  to  prove  it,  the  rule  required 
evidence  strong  and  clear  beyond  all  doubt  and  contradiction,  that  lie 
was  capable  of  discerning  between  good  and  evil;  p'ld  the  legal  pre- 
sumption being  that  he  was  incapable  of  committing  the  crime,  for 
v/ant  of  such  knowledge,  it  devolved  en  the  People  to  make  the  strong 
and  clear  proof  of  capacity,  before  they  could  be  entitled  to  a  convic- 


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560 


AMERICAN  CRIMINAL  REPORTS. 


tlon.  This  record  may  be  searched  In  vain  to  find  any  such  proof. 
There  was  no  witness  examined  on  that  question,  nor  did  any  refer  to 
it.  There  is  simply  evidence  as  to  his  age.  For  aught  that  appears, 
he  may  have  been  dull,  weak,  and  wholly  incapable  of  knowing  good 
from  evil.  It  does  not  appear,  from  even  the  circumstances  in  evi- 
dence, that  he  may  not  have  been  mentally  weak  for  his  age,  or  that 
he  may  not  have  even  approached  idiocy. 

The  law  presumes  that  he  lacked  mental  capacity  at  his  age,  and 
that  presumption  has  not  been  overcome  by  the  requisite  proof,  or.  In 
fact,  any  proof.  The  court  below  should  therefore  have  granted  a  rew 
trial,  and  erred  In  refusing  It. 

Again,  the  jury  were  not  clearly  and  fully  Instructed  on  the  ques- 
tion. Several  instructions  given  for  the  People  omitted  this  rule,  when 
they  should  have  been  qualified  by  Informing  the  jury  that  proof,  and 
clear  proof,  of  capacity  must  be  given.  In  such  a  case,  the  mere  an- 
nouncement of  the  rule  In  general  terms,  as  was  done  in  the  eighth  of 
the  People's  Instructions,  was  not  sufficient.  The  jury  may  have  been 
misled  by  the  instructions  that  should  have  been  qualified. 

It  Is  to  be  regretted,  that  counsel  who  assisted  the  prosecuting  at- 
torney referred,  as  he  did  in  his  argument  to  the  jury,  to  the  fact  that 
plaintiff  in  error  wa-s  not  placed  on  the  stand  as  a  witness  as  one  of 
the  reasons  why  he  should  be  convicted.  It  Is  true,  that  when  stopped 
by  the  court,  he  said  it  was  Inadvertently  done,  and  the  jury  were  di- 
rected by  the  court  to  disregard  that  portion  of  his  argument.  Not- 
withstanding what  he  said,  and  the  direction  of  the  court  to  disregard 
it,  who  can  know  what  effect  It  may  have  had  on  the  jury  In  forming 
their  verdict?  Such  comments  are  prohibited  by  the  statute,  and  it  la 
strange  that  any  attorney  should  so  far  forget  the  rights  of  the  ac- 
cused, and  his  professional  duty,  for  a  moment,  even  in  the  heat  of 
discussion;  but  he  said  It  was  Inadvertent,  and  we  are  loth  to  believe 
that  any  attorney  would  Intentionally  act  so  unfairly  and  unprofes- 
sionally.  We  cannot  conceive  that  any  member  of  the  bar  could  de- 
liberately seek  by  such  means  to  v/roncfully  procure  a  conviction  and 
the  execution  of  a  fellow  being,  when  his  highest  professional  duty  to 
his  client  only  requires  him  to  see  that  there  Is  a  fair  trial  according 
to  the  law  and  the  evidence.  Where  such  things  are  done,  whether 
intentionally  cr  inadvertently,  it  may  make  an  Impression  on  the  mindfe 
of  the  jury  that  nothing  can  remove.  And  who  can  say  that  this  inad- 
vertence may  net  have  produced  the  verdict  of  guilty? 

We  think  plaintiff  In  error  has  net  had  a  fair  trial,  and  the  judg- 
ment of  the  court  below  must  be  reversed  and  the  cause  remanded. 

Judgment  reversed.  * 


I!  ' 
i  i 


1; 


y  such  proof. 
1  any  refer  to 
that  api)ear.^, 
knowing  good 
tances  In  evl- 
'  age,  or  that 

^is  age,  and 

proof,  or,  in 

ranted  a  rew 

on  the  qnes- 
Is  rule,  when 
It  proof,  and 
the  mere  an- 
he  eighth  of 
y  have  been 
cl. 

'secntlng  at- 
he  fact  that 
5s  as  one  of 
hen  stopped 
iry  were  dl- 
ment.    Kot- 
to  disregard 
In  forming 
-e,  and  it  ia 
'  of  the  ac- 
the  heat  of 
1  to  believe 
1  iinprofes- 
f"  could  de- 
pletion and 
lal  duty  to 
according 
?,  whether 
the  minds 
this  Inad- 

the  judg. 
nded. 


LOTTERY  CASE.  5G1 

LoTTEnv  Cask. 

(Champion  v.  Ames.) 

188  U.  S.  321—47  Law  Ed.  492—23  Sup.  Ct.  Rep.  321. 

Decided  February  23,  1903. 

*"LoTTi:i{Y  C.\sk":  Constitntionalitij  of  the  act  of  Congress,  forhkhUnri 
the  transmission  of  lottery  tickets  from  State  to  State— Inter- 
state commerce. 

Held  by  a  majority  of  the  court: 

"That  lottery  tickets  are  subjects  of  trafflc  among  those  who  choose 
to  sell  or  buy  them;  that  the  carriage  of  such  tickets  by  independent 
carriers  from  one  State  to  another  is  therefore  interstate  commerce; 
that  under  Its  power  to  resulate  commerce  among  the  several  States, 
Congress — subject  to  the  limitations  imposed  by  the  Constitution  upon 
the  exorcise  of  the  powers  granted — lias  plenary  authority  over  such 
conunerce,  and  may  prohibit  the  carriage  of  such  tickcLs  from  State  to 
State:  and  that  legislation  to  that  end,  and  cf  that  character,  is  not  in- 
consi.«tent  with  any  limitation  or  restriction  imposed  upon  the  exercise 
of  the  powers  granted  to  Congress." 

Appeal  to  tlic  8ii])r(i)io  Conrt  of  the  T'iiitod  States  from  an 
oi'der  of  the  Circuit  Court  of  the  Uiuteil  Slates  for  the  Xorth- 
cni  District  of  Illinois.  disniirJsiini'  tli(>  apj)eal  of  C.  F.  Cham- 
pion by  which  he  prayeil  his  discharge  by  writ  of  hahoas  corpus, 

Arii'ned  Feb.  I'T  and  28,  1901. 

Ive-argumeiit  ordered  Ai)ril  29,  1901. 

lle-ari-'ued  Oct.  10  and  17,  1901. 

Order  for  arii'ument  JK'fore  full  Bench  Xov.  10,  1902. 

IJe-argued  I)ec.  15  and  10,  1902. 

Decided  Feb.  23,  1903. 

Allirnied. 

Statement  of  the  case  hy  Justice  IIarlax: 

Tiie  aeneral  cpicstion  arisiui;:  upon  this  appeal  involves  the 
constitutionality  of  the  1st  section  of  the  act  of  Congress  ot 
.March  2d,  1S95,  chap.  li»l.  entitled  "An  Act  f<ir  the  Sup- 
pression of  Lottery  TratHc  through  Xational  and  Interstate 
Conmicrcc,  and  the  Postal  Service,  Subject  to  the  .lurisdiction 
an<l  Laws  of  the  rni(;>d  States."  28  Stat.  903  (T.  S.  Coinp. 
Stat.  1901,  p.  3178). 

*In  the  188,  U.  S.  this  case  is  known  as  lof^ery  Case;  but  In  the  other 
reports  as  Champion  v.  Ames. 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 

Vol.  XIII— 30 


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562 


AMERICAN  CRIMINAL  REPORTS. 


The  appeal  Avas  from  an  order  of  the  Circuit  Court  of  tlio 
United  States  for  the  Northern  District  of  Illinois  dismissing 
a  writ  of  Jiabcas  corpus  sued  out  by  the  appellant  Champion, 
wlio  in  his  a])plieation  complained  that  he  was  restrained  of 
his  lihcrty  by  the  .Marshal  of  the  United  States  in  violation 
of  the  Cnnstitution  and  laws  of  the  United  States. 

It  aj)pears  that  the  accused  was  under  imlietment  in  the  Dis- 
trict Court  of  tlu!  United  States  for  the  Northern  District  of 
Texas  for  a  conspiracy  under  ^  5440  of  the  IJcvisod  Statutes 
(U.  S.  Comp.  Stat.  1 !)()!,  p.  ,'J()7(!)>  in'ovidini^'  that  "if  two  or 
more  persons  conspire  either  to  commit  any  <iH"cnsc  aii'ainsi  the 
United  States,  or  to  defraud  the  United  States  in  any  manner 
or  for  any  purpose,  and  one  or  more  of  such  parties  do  juiy  act 
'to  eti'ect  the  object  of  the  consi)iracy,  all  the  jiarties  to  such  con- 
spiracy shall  Ix;  liable  to  a  penalty  of  not  less  than  o!ie  thonsiuid 
dollars  and  not  more  than  ten  thousand  dollars,  and  to  imjjrison- 
ment  not  more  than  two  years." 

lie  was  arrested  at  Chica_iio  under  a  warrant  based  upon  a 
complaint  in  writiuii',  under  oath,  charging'  him  with  conspiring 
with  tithcrs,  at  Dallas,  in  the  Northern  District  of  Texas,  to 
commit  the  oiTcnse  denounced  in  the  above  act  of  181),");  iind  the 
object  of  the  arrest  was  to  compel  his  ap])earance  in  the  Federal 
Court  in  Texas  to  answer  the  indictnu  iit  against  him. 

The  1st  section  of  the  act  of  LSSI."),  uixm  which  the  imhct- 
nient  was  based,  is  as  follows:  *'S  1.  That  any  person  who  shall 
cause  to  be  brought  witl:.in  the  United  Stales  from  abroad,  for 
the  purpose  of  disposing  of  the  same,  or  deposited  in  or  car- 
ried by  the  mails  of  the  United  States,  or  carrie(l  from  oni'  State 
to  another  in  the  United  States,  any  i)a[ier,  certificate,  or  in- 
strument ])urj!ortiTig  to  be  or  represi  nt  a  ticket,  share,  or  in- 
terest in  or  dependent  upon  the  event  of  a  lott(M'y,  so-called 
gift  concert,  or  similar  enterprise,  offering  prizes  dependent 
ui»on  lot  or  chance,  or  shall  cause  any  advertisement  of  such 
littery,  so-called  gift  concert,  or  similar  enterprise',  oifering 
j)rizes  depende'iit  upon  lot  or  chance,  to  be  ])ronght  into  the 
United  States,  or  deposited  in  or  carried  by  the  mails  of  the 
Urited  States,  or  transferred  from  one>  State  to  another  in  the 
same,  shall  bo  punishable  in  (for)  the  first  olfense  by  imprison- 
ment for  not  more  than  two  years,  or  by  a  fine  of  not  UKn-e  than 
$1,000,  or  both,  and  in  the  second  and  after  offenses  by  such 
imprisonment  only.*'  2S  Stat.  903  (U.  S.  Comp.  Stat.'  11)01, 
p.  317S). 


mmm 


LOTTERY  CASE. 


563 


n-t  of  tlio 
lismissiiij.' 
liiimpioii, 
raincfl  of 
violiitioii 


1  tli(>  Di>:- 
i--<tri('t  of 
►Sfiitiitc's 
if  two  or 
iiiiist  tlio 
iiiiiiincr 
n  iiiiv  act 

.^lU'Il  0011- 
lll(ins;ui(l 

iMpri.soii- 

1    II])!)!!    !l 

'iisjn'riii^f 
cxas,  to 

;  ami  tlic 
Fc.lcral 

(>  indict- 
i-h(»  sliull 
■i>niL  fdi' 
I  (!!■  car- 
iic  Stale 
\  (ir  iii- 
',  or  iii- 
^o-callcil 
pciidfut 
of  !^n('h 
otfcrin^' 
iito   rlic 
1  ('f  tho 
'  ill  the 
ijirisoii- 
vc  than 
>y  such 


The  indiotiiioiit  charged,  in  its  first  count,  that  on  or  about 
the  1st  (hiy  of  Jubruary  A.  D.  181)9,  in  Dalhis  County,  Texas, 
'•('.  F.  Champion,  alias  W.  \V.  Ogden,  W.  F.  Champion,  and 
Cliarles  IJ.  Park  did  then  and  tliere  unlawfully,  knowingly,  and 
fcuiiiiniisly  conspire  together  to  commit  an  otl'eiise  against  the 
Fiiited  States,  to  wit,  for  the  purjiose  of  disposing  of  the  same, 
to  cause  to  Ix*  carried  from  one  State  to  another  in  the  Fnited 
Slates,  to  wit,  from  Dallas,  in  the  State  of  Texas,  to  Fresno,  in 
the  State  of  (-alifornia,  certain  pajx^rs,  certificates,  and  instru- 
nieiits  puri)ortiiig  to  be  and  representing  tickets,  as  they  then  and 
there  well  knew,  chances,  shares,  and  interests  in  and  dependent 
upon  the  event  of  a  lottery,  offering  |»rizes  de]iendent  u])on  lot  and 
chance,  that  is  to  say,  caused  to  be  carried,  as  aforesaid,  for  the 
ptirixise  of  disposing  of  the  same,  jiapers,  certificates,  or  instru- 
ments purporting  to  be  tickets  to  represent  the  chances,  shares, 
and  interests  in  the  jirizes  which  by  lot  and  chance  might  bo 
awarded  to  persons,  to  these  grand  jurors  unknown,  who  might 
purchase!  said  pa])ers,  certificates,  and  instruments  represent,ing 
and  piir])orting  to  be  tickets,  as  aforesaid,  with  the  nnnibers 
thereon  shown  and  indicated  and  jiriiited,  which  by  lot  and 
chance  should,  on  a  certain  day,  draw  a  prize  or  prizes  at  the 
purported  lottery  or  chance  c(imi)any,  to  wit,  at  the  jnirported 
monthly  drawing  of  the  so-called  Pan-American  Lottery  Com- 
pany, whicli  ])ur])orted  to  draw  monthly  at  Asuncion,  Paraguay, 
which  said  Pan-American  Lottery  Company  purported  to  be 
an  ent(M-])rise  oflering  prizes  dcpemlent  up«m  h)t  and  chance, 
the  speciiic  method  of  such  drawing  being  unknown  to  the  grand 
jurors,  but  which  said  papers,  certificates,  and  instruments  j)ur- 
jjorting  to  be  and  representing  tickets  U]inn  their  face  pur- 
])orting  to  be  entitled  to  participation  in  the  drawing  for  a  cer- 
tain capital  prize  amounting  to  the  sum  of  $o2,0()(),  and  whicli 
said  drawings  for  said  capital  ])rize,  or  the  part  or  parts  thereof 
allotted  or  to  be  allotted  in  conformity  with  the  scheme  of  lot 
and  chance,  were  to  take  place  monthly,  five  manner  and  f(»nu 
of  which  is  to  the  grand  jurors  unknown,  but  th;it  said  drawing 
and  lot  and  chance  by  which  said  ])rize  or  prizes  were  to  be 
drawn  was  purported  to  be  under  the  supervision  and  direction 
of  iMirigue  ^lontes  de  Leon,  manager,  and  ]>ernardo  Lopez, 
intervener,  and  which  said  papers,  certificates,  and  instruments 
purporting  to  be  tickets  of  the  said  J'an-American  Lottery  Com- 
pany were  so  divided  as  to  be  called  whole,  half,  quarter,  and 


'»., 


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5G4 


AMERICAN  CRIMINAL  REPORTS. 


t'iglith  ticket?,  the  whole  tickets  to  be  sold  for  the  sum  of  $2,  tlic 
half  tickets  for  the  sum  of  $1,  the  quurter  tickets  for  tlio  sum 
of  TiO  ccuts  au<l  the  eif;hth  tickets  for  the  sum  of  2')  cents." 

The  indictuu'iit  further  charficd  that  "in  ])ursuancc  to  said 
conspiracy,  and  to  cflVct  the  ohject  thereof,  to  wit,  f(M'  llie. 
purpose  itf  causing  to  be  carried  from  one  State  to  another  in 
the  I'nited  States,  t(»  wit,  from  the  State  of  Texas  to  the  State 
of  California  aforesaid,  for  the  purpose  of  disposing  of  the  same, 
pajiers,  certificates,  and  instruments  ])urp<)rtin,i''  to  be  and  repre- 
senting' tickets,  chances,  and  shares  ami  interc><ts  in  aiul  depen- 
dent upon  lot  and  chance,  as  aforesaid,  as  they  then  and  tlicre 
well  knew,  said  \V.  F.  Champion  and  Charles  |].  Park  did  then 
and  there,  to  wit,  on  or  about  the  day  last  aforesaid,  in  the  year 
1S!»!),  in  the  county  aforesaid,  in  the  Dallas  division  of  tlio 
Xorthcni  District  of  Texas  aforesaid,  imlawfnlly,  knowiuiiiy, 
and  feloniously,  for  the  purpose  of  iK'inj^- carried  from  one  State 
to  another  in  the  L'nited  States,  to  wit,  I'nim  Dalliis,  in  the  State 
of  Texas,  to  Fresno,  in  the  State  of  California,  for  the  purpose 
of  disposing'  <d'  the  same,  deposit  and  cause  to  be  di^posited  and 
shipped  and  carried  with  and  by  the  Wells- Far^'o  Kxpress  Com- 
pany, a  corporation  enyaiicd  in  carrying  freight  and  |)ackiiges 
from  station  to  staticui  along  and  iiver  lines  of  railway,  ami  fmiti 
Dallas,  Texas,  to  Fresno,  California,  for  hire,  one  c(>rtain  Ixix 
or  i)ackage  c(»ntaining,  among  other  things,  two  whole  tickets 
or  papers  or  certilicates  of  said  ])urported  I'an-Anierican  Ldt- 
tery  Coni{)any,  one  of  which  said  mIioIc  tickets  is  hereto  annext'd 
by  the  grand  jury  to  this  indictuu  lit  iiiid  made  a  jiart  hereof." 

It  thus  a])pears  that  the  carrying  in  this  case  was  by  an  in- 
corporated ex]>ress  Cduipany,  engaged  in  transporting  freight 
and  packages  from  one  f".,al(»  to  another. 

The  commissioner  who  issued  the  warrant  of  arrest,  having 
found  that  there  was  probable  cause  to  believ(>  that  Chain|)ion 
was  guilty  of  the  olfcuse  charged,  ordered  that  he  give  bond  for 
his  apjiearance  for  trial  in  the  District  Court  of  the  United 
States  for  the  A\»rthern  District  of  Texas,  or  in  default  thereof 
to  Ik'  committed  to  jail.  Having  declined  to  give  the  recjuired 
boiul  the  accused  was  taken  into  custody.  Kev.  Stat,  j'^  1014 
( U.  S.  Com]).  Stat.  11)01,  p.  7l<>)-  'I'hereupon  he  sued  out  the 
presc'^nt  writ  of  habeas  corpus  uptni  the  tlieory  that  the  act  *>i. 
18135,  under  which  it  was  projwsed  to  try  him,  was  void,  under 
the  Constitution  of  the  United  States. 


LOTTERY  CASE. 


5G5 


Messrs.  Morilz  Roscvfhal,  William  D.  (luihric*  niul  Joseph 
B.  David,  for  the  uppolliint. 

Assistant  Altonieij  (leneral  Heclc,  for  \W  nppollco. 

^Fr.  Justice  IIaht-an  dclivorcd  the  opinidu  of  tlio  Court: — 
Tlic  appellant  iiisist>*  tliat  tlic  carrvinu'  <>f  lottery  tickets  from 
one  State  to  another  State  hy  an  express  eoiiipaiiy  I'npiiicd  in 
carryini":  freiglit  and  packages  from  State  to  State,  altlioiijih 
sueh  tickets  may  be  contained  in  a  Ik>x  or  packaf^e,  does  not  con- 
stitute, and  cannot  by  any  act  of  C'ouf^ress  be  legally  nuule  to 
constitute,  commerce  amonp:  the  States  within  the  meaiiiii<>'  of 
the  clause  of  the  Constitution  of  the  United  States  i>rovid"Mf;' 
that  Coiif>r(^H  shall  have  power  "to  regulate  commerce  with 
foreij-u  nations,  and  amouiu^  the  several  States,  and  with  the 
Indian  tribes;"  consecpiently,  that  Conj>rcss  cannot  nuike  it  an 
oilVnse  to  cause  such  tickets  to  be  carried  from  one  State  to  an- 
other. 

The  pfovernnicnt  insists  that  express  companies,  when  en- 
jiaji'ed,  for  hire,  in  the  business  of  transportation  from  one 
State  to  another,  are  instnnnentalities  of  commerce  among 
the  States;  that  the  carryinj;'  of  lottery  tickets  from  one  Slate 
to  another  is  commerce  which  Congress  may  regulate;  ami  that 
as  a  means  of  executing:  the  power  to  regulate  interstate  com- 
merce Congress  may  make  it  an  offense  against  the  United 
States  to  cause  lottery  tickets  to  be  carried  from  one  State  to 
another. 


, :  it 


-  ■■( 


'iil^/li   ' 


♦In  1S8,  U.  S.  the  name  of  William  D.  Guthrie  alone  appears  for  the 
appellant.  This  error  was  caused  by  the  fact,  that  Mr.  Guthrie  made 
the  only  oral  argument  for  appellant  at  the  last  hearing.  At  the  first 
oral  argiiment  on  Feb.  27th  and  28th,  1901,  Mr.  Rosenthal  made  the 
opening  argument  and  Mr.  Guthrie  closed  for  the  appellant.  Subse- 
quently Mr.  Justice  Gray  died.  On  Oct.  ICth  and  17th,  1901,  the  case 
being  consolidated  for  purposes  of  argument  witli  Francis  et  ah  v. 
United  States  and  was  orally  argued  by  Mr.  Guthrie  for  the  appellant, 
rnd  by  Senator  Edmunds  for  the  petitionei-s  in  the  Francis  Case.  :Mr. 
Justice  Holmes  had  not  yet  taken  the  Bench;  so  there  were  only  eight 
of  the  justices  present;  and  it  was  rumored  that  the  court  was  evenly 
divided.  By  order  of  court  a  third  oral  argument  was  heard  before 
the  full  Bench  on  Dec.  15th  and  16th,  1902,  at  which  time  Mr.  Guthrie 
spoke  for  the  appellant,  and  Senator  Carlisle  for  the  petitioners  in  the 
Francis  Case.  At  each  of  the  three  hearings  Assistant  Attorney  Gen- 
eral Beck  was  heard  on  behalf  of  the  Government. 


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5GG 


AMERICAN  CRIMINAL  REPORTS. 


'  Tho  questions  prcsontod  by  tlioso  fi)i)OHir»g  contontidns  nrc 
(if  ^i'rcat  luoiiu'iit,  iiiul  lire  oiititlcd  to  recrive,  na  they  hnvc  n- 
ccivctl,  tlie  most  careful  coiisideratioii. 

What  irt  the  import  of  the  word  ••commorco"  as  us(m1  in  the 
roiistitution  i  It  is  iiut  dctiiicd  by  that  instnimcnt.  riidouhtcil- 
)y,  tlic  carryiiifj;  from  one  Slate  to  another  by  independent  cnr- 
riora  of  thing's  or  eonnnodities  that  an!  ordinary  snhjecis  ul! 
trallie,  and  whieii  have  in  themselves  a  r(<'(iiiiiize<l  vahic  in 
nionev,  constitutes  interstato  connneree.  IJut  docs  not  innn- 
ineree  among  the  several  States  include  something  more  i  Docs 
not  the  carrying  from  one  Suito  U>  another,  hy  imle])endeni  car- 
riers, of  lottery  tickets  that  entitle  the  holder  to  the  payment  of 
a  certain  amount  of  money  therein  spocitied  also  constitute 
commerce  among  the  States  ( 

It  is  contended  by  the  parties  that  these  (pjeations  are  an- 
swered in  the  former  decisions  of  this  court,  the  Government 
insisting  that  the  principles  heretofore  announced  support  its 
])osition,  while  the  contrary  is  contidently  asserted  by  the  ai>- 
pellant.  This  makes  it  necessary  to  ascertain  tlu-  import  of 
such  decisions.  Upon  that  impiiry  we  now  enter,  i)remising 
that  s(jme  j)ropositions  were  advanced  in  argument  that  need 
not  be  considered.  In  the  exandnation  of  former  judgments 
it  will  be  best  to  look  at  them  somewhat  in  the  order  in  which 
they  were  remlered.  When  prio'r  adjudications  have  been  thus 
collated  the  particular  grounds  u])on  which  th(>  judjiineiU  in  the 
])resent  case  must  necessarily  rest  can  Ih'  readily  determined. 
We  may  here  remark  that  sonu'  of  the  cases  referrecl  to  may  not 
bear  directly  upon  the  (jnestions  necessary  to  be  (lecide(|,  but 
attentitm  will  be  directed  to  them  as  throwing  light  upon  the 
general  in(]uirv  as  to  the  meaning  and  scope  <tf  tho  commerce 
clause  of  the  (•onstitution. 

The  leading  case  under  the  connneree  clause  of  the  Constitu- 
tion is  aibhons  V.  Ogdcn,  J)  Wh(>at.  1,  IS}),  104-  ((5  L.  ed.  2.^, 
08,  (lit).  Referring  to  that  clause.  Chief  dustice  Marshall 
said:  ''The  subject  to  be  regulated  is  commerce;  and  our  Con- 
stitution being,  as  was  aptly  said  at  the  bar,  one  of  enumera- 
tion, and  not  of  definition,  to  ascertain  the  extent  of  the  j)ower, 
it  becomes  necessa^'y  to  settle  the  meaning  of  the  wor<l.  Tho 
counsel  for  the  appellee  would  limit  it  to  traffic,  to  buying  and 
selling,  or  the  interchange  of  conmiodities,  and  do  not  adnut 
that  it  comprehends  navigation.     This  would  restrict  a  general 


Ik'J  liiivc  re- 
used ill  (|„, 
l'll<lniil»|((|- 

XMldcilt     ,.;|p. 

siiltjccts  <l|.' 
'<!  VJiliic  ill 
'f^  not  cdiii- 
'•"■<' ^  Ihn'i 
x'IkIciii  cjii-- 

»iiviii(«.|(  ,,!;• 

t-'tjnwtitiitc 

"IIS  iir(>  !iii- 

-»«'V(-niiiiciit 

support   \t< 

l>y  the  ii|H 

iiiipdrt   ui' 

I>r('iiiisiiii; 

•  tliiif.  iici'd 
jild^iiiciits 

'»•  ill  wliich 

•  '"I'll    tlllJS 

iH'iil  ill  tlic 
«'foriiiiii(.d. 
I<>  iiiiiv  imr 
c'idcd,  l,„t 
iip'iii  flu- 
coinmcrcG 

Constifn- 
r>.  cd.  2.'3, 

^larsliiill 
our  Con- 
onuiiicra- 
lo  j)o\vor, 
nl.     Tlio 
vine:  find 
it  admit 
•  general 


LOTTERY  ,CASL. 


567 


term,  nitplicnlilo  to  innny  ()l)jecfs,  to  one  of  its  significations. 
( 'oniniei'co,  uiulonhtedly,  is  IratHc,  but  it  is  sonietliing  more;  it 
is  intercourse.  It  (iescrilies  tlio  ooniinerciiil  intercourse  l)e- 
twcen  nations  and  parts  <»t'  nations,  in  all  lis  hranclies,  and  is 
regulated    by    prescribing    rides    for   carrying   on   thai    iiilcr- 


course. 


It  has  Ikm'U   trulv  said,   that 


connnercc,  as 


tho  word  18  used  in  the  Constitution  is  a  unit,  every  part  of 
wliich  is  indicated  by  the  term.  If  this  be  the  ailmitted  memiing 
of  the  word,  in  its  application  to  foreign  nations,  it  must  ciirry 
the  same  meaning  throughout  the  Hcntence,  and  r(>niain  a  unit, 
unless  tlierc  Ik;  some  i)lain,  iiUelligible  cause  wliich  alter-;  it. 
The  sid»ject  to  which  the  power  is  ni  xt  applied  is  to  connucrcp 
'among  the  several  States.'  Tho  word  'ana 
nungled  with.  A  thing  which  is  among  others  is  intermiiigicd 
with  thenu  Commerce  among  the  States  cannot  stoj)  a  I  the 
external  boundary  line  of  each  State,  but  nniy  he  introduced 
into  the  interior.     It  is  not  intended  to  sav  that  these  words 


)ng    means   iiilcr- 


com[)relien(l  that  conunerc(r  wiiicii  is  com|)lctely  internal,  which 
is  carried  on  between  man  ami  man  in  a  Stale,  or  between  dif- 
ferent i)arts  of  the  same  State,  and  which  does  not  extend  to  or 
affect  other  States.  Such  a  jKnver  would  be  inconvenient,  and 
is  certainly  iinneeessary.  Com])rehensive  as  the  word  'anmug' 
is,  it  may  very  i)roperly  be  restricted  to  that  coiiiinerce  which 
concerns  iiiori;  States  than  one.  .  .  .  The  genius  and  char- 
acter of  the  wlaile  (jioveriiUH  nt  seem  to  be  that  its  actioji  is  to 
bo  applied  to  all  external  concerns  of  the  nation,  and  to  tlu)so 
internal  concerns  which  alTect  tho  States  generally;  but  not 
to  those  which  are  completely  within  a  particular  State,  wliich 
do  not  afreet  other  states,  and  with  v/liich  it  is  not  necessary 
to  interfere,  for  the  purpose  of  executing  some  of  the  general 
powers  of  the  Government.     ..." 

Again:  *'\Ve  are  now  arrived  at  tho  inquiry, — What  is  this 
power  i  It  is  the  power  to  ri'gulate ;  that  is,  to  prescribe  the 
rule  by  which  commerce  is  to  bo  governed.  This  power,  like 
all  others  vested  in  Congress,  is  complete  in  itself,  may  be  exer- 
cised to  its  utmost  cxlcnt,  and  acknowledges  no  liniitations, 
other  than  are  prescribed  in  the  Constitution.  These  are  ex- 
pressed in  jdaiu  terms,  and  do  not  afi'ect  the  questions  which 
arise  in  this  case,  or  which  have  boon  discussed  at  tho  bar.  If, 
as  has  always  Ihm^ii  under.^tood,  the  sovereignty  of  Congress, 
though  limited  to  specific  objects,  is  jdenary  as  to  those  objects, 
the  power  over  conunerce  with  foreign  nations,  and  among  the 


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568 


AMERICAN  CRIMINAL  REPORTS. 


several  States,  is  vested  in  Congress  as  absolutely  as  it  icouhl 
be  in  a  single  gocerninent,  having  in  its  constitution  the  san.i' 
restrictions  on  the  exercise  of  the  power  as  are  found  in  tlic 
Constitution  of  the  United  States." 

^Ir.  Justice  Jolins<»ii,  in  the  same  ease,  expressed  las  entire 
appmbatiou  of  the  jud^iiicut  rendered  by  the  court,  but  de- 
livered a  s(^parate  (»[)ini(in  indieatin<>-  the  ])r(  eise  grounds  updu 
■\vliicdi  liis  conchisiou  restech  Referring  to  llie  grant  of  j)(i\vor 
over  eonijUicree,  he  said:  ''My  opinion  is  founded  on  tlie  app'ii- 
ea(i(  u  of  tlie  words  of  the  grant  to  the  sul)jeet  of  it.  The 
'])o\ver  to  regiihite  coninieree'  hi're  meant  to  be  granted  "was 
that  jiowcr  to  regulate  cdmmerce  which  ])reviou,sly  existed  in 
the  States.  But  what  was  that  powers  The  Slates  were,  un- 
questionably, su])reme ;  and  each  possessed  that  power  ovrr 
connncrce  which  is  acknowledged  to  reside  in  every  Sovereign 
State.  .  .  .  The  law  of  nations,  regarding  man  as  a  .-o- 
cial  animal,  pronounces  all  connncrce  legitimate,  in  a  state  tif 
peace,  until  jirohibited  by  positive  law.  The  pcjwer  of  a 
Sovereign  State  over  connncrce,  therefore,  amounts  to  nothing 
more  than  a  ])ower  to  lindt  and  restrain  it  at  ])leasure.  Aiul 
since  the  power  to  prescribe  the  linuts  to  its  freedom  necessarily 
inijilies  the  ju.wer  to  deternune  what  shall  remain  unrestrained, 
it  follows  that  the  power  must  hv.  exclusive;  it  can  reside  but 
in  one  potentate;  and  hence  the  grant  of  this  ])o\ver  carries  with 
it  the  whole  subject  leaving  nothing  for  the  State  to  act  u[)on," 

The  i)rinciples  announced  in  Uibbons  v.  (Jgden  were  reaf- 
firmed in  Brown  v.  Marghind,  12  Wheat.  419,  'WG  (0  L.  ed. 
G7S,  (!,ss).  After  expressing  doubt  whether  any  of  the  evils 
proceeding  from  the  feebh  iu>s  of  the  Federal  Govermneni;  con- 
tributed more  to  the  establishing  of  the  present  constitutional 
system  than  the  deep  and  general  conviction  that  conmierce  ought 
to  be  regulated  by  Congress,  Chief  Justice  ^larshall,  siicaking 
for  the  court,  said:  "It  is  not,  therefore,  matter  of  surprise 
that  the  grant  sh<iuld  be  as  extensive  as  the  nnschief,  and  slioidd 
com|,r('liend  all  foreign  ctunmerce,  and  all  conunerce  among  the 
States."  Considering  the  (piestion  as  to  the  just  extent  of  the 
j)ower  to  regulate  commerce  with  foreign  nations  and  among 
the  several  States,  the  court  realKrmed  the  doctrine  that  the 
power  was  "complete  in  itself,  and  to  acknowledge  no  linuta- 
tions  other  than  are  j)rescribed  by  the  Constitution.  .  .  , 
Commerce  is  intercourse;  one  of  its  most  ordinary  ingredients 
is  traffic." 


LOTTERY  CASE. 


569 


Tn  the  Passenger  Cases,  7  IIow.  283  (12  L.  cd.  702),  the 
court  adjudged  certain  statutes  of  ^'ew  York  and  Massachusetts, 
iiiipiisiiig  taxes  upon  alien  ])asseiigers  arriving-  in  the  jiorts  of 
those  States,  to  be  in  viohition  of  the  Constitutidu  and  hiws  of 
the  United  States.  In  the  separate  opinions  delivered  bv  the 
justices  there  will  not  be  found  any  expression  of  diuiht  as  to  the 
ddctrines  announced  in  Gibbons  v.  Ogdcn.  ^Ir.  Justice  ^IcLean 
said:  *"( "onunerce  is  deiined  to  be  'an  exchange  of  cuiiniiodities.' 
]hit  this  delinition  dues  not  convey  the  full  meaning  of  the 
term.  It  includes  'navigation  and  intercourse.'  That  the  trans- 
portation of  passengers  is  part  of  conmierce  is  not  now  an  open 
question."  Mr.  Justice  Grier  said:  "Commerce,  as  deiined  by 
this  court,  means  something  more  than  tratHc, — it  is  intercourse; 
and  the  power  conunitted  to  Congress  to  regulate  commerce  is 
exercised  by  prescribing  rules  for  carrying  on  that  intercourse." 
The  same  views  were  expressed  by  ]\lr.  Justice  Wayne,  in  his 
se])arate  opinion.  IJe  regarded  the  question  then  befoi'e  the 
court  as  covered  by  the  decision  in  (jibbuns  v.  0(jdvn,  and  in 
resjiect  to  that  case  he  said:  "It  will  always  be  a  higli  and  hon- 
orable i)roof  of  the  eminence  of  the  American  Bar  of  that  day, 
and  of  the  talents,  and  distinguished  ability  of  the  judges  who 
were  then  in  the  places  whi(;h  we  now  occupy."  .Mr.  Justice 
Catron  and  Mr.  Justice  McKiidey  announced  substantially 
the  same  views. 

In  Almij  V.  California,  2-t  ITow.  1G9  (10  L.  ed.  (U4),  a 
Statute  of  California  inijxtsing  a  stanqi  duty  ujion  bills  of 
lading  for  gold  or  silver  transported  from  that  State  to  any 
pert  or  jiiace  out  of  the  State  was  held  to  be  a  tax  on  exports, 
in  violation  of  the  provision  of  the  Constitution  declaring  that 
''no  lax  or  duty  shall  be  laid  on  articles  exported  from  any 
State."  But  in'  WoodrujJ  v.  Parliain,  8  WaU.  12;},  l.'IS  (19  L. 
ed.  ;jS2,  oSC)),  this  court,  referring  to  the  Ainu/  Cnsr,  said  it 
Avas  well  deci(h'd  upon  a  ground  not  mentioned  in  llio  opinion 
of  the  court,  namely,  that,  although  the  tax  there  in  (picstion 
was  only  on  bills  of  lading,  ".-.uch  a  tax  was  a  regulation  of  com- 
mcree,  a  tax  imjiosid  upon  the  transportation  of  goods  from 
one  State  to  another,  over  the  high  seas,  in  ccnitlict  v\ith  that 
freedom  of  transit  of  goods  and  persons  betw(>en  one  State 
and  another,  which  is  within  the  rule  laid  down  in  Cnnidnll 
V.  Xcroda  (0  Wall.  'Vy,  IS  L.  cd.  744),  and  with  the  authority 
of  Congress  to  regulate  commerce  among  the  States." 


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AMERICAN  CRIMINAL  REPORTS. 


In  Henderson  v.  N'ew  York,  92  U.  S.  259,  270  (suh  nom. 
Henderson  v.  Wickham,  23  L.  ed.  543,  548),  which  involved  tlio 
constitutional  validity  of  a  statute  of  Xew  York  relatinji;  to 
vessels  bringing  passengers  to  that  port,  this  court,  speaking  In- 
Mr.  Justice  ^liller,  said:  ''As  already  indicated,  the  provision.-; 
of  the  Constitution  of  the  United  States,  on  which  the  ]nMii- 
cipal  reliance  is  placed  to  make  void  the  statute  of  New  York, 
is  that  which  gives  to  Congrtss  the  power  'to  regulate  coninicrcc 
with  foreign  nations.'  As  was  said  in  Untied  Sidles  v.  Jlolli- 
day,  3  Wall.  417  (18  L.  ed.  1S5),  'connnerce  with  foreign 
nations  means  commerce  between  citizens  of  the  United  States; 
and  citizens  or  subjects  of  foreign  governments.'  It  means 
trade,  and  it  nunuis  intercourse.  It  means  connnercial  inter- 
course lK'tw(  (Ml  nations,  and  parts  of  nations,  in  all  its  branches. 
It  includes  navigation,  as  the  principal  means  by  wh-ich  foreign 
intercourse  is  ( il'ected.  To  regulate  this  trade  and  intercourse 
is  to  ])nscril)e  the  rules  by  which  it  shall  be  conducted.  'The 
mind,'  says  the  great  Chief  Justice,  'can  scarcely  conceive  a 
system  for  ngnlating  commerce  be  tv.-een  nations  which  shall 
'exclude  all  law,,  concerning  navigation,  which  shall  be  silent 
on  the  admission  of  the  vessels  of  one  nation  into  the  ports  of 
another';  and  he  might  have  ad<]ed,  wiili  equal  force,  which 
i:)rescril)ed  no  terms  for  the  admission  of  their  cargo  or  their 
passengers.     (Jihbans  v.  Ogden,  9  Wheat.  190  (0  L.  ed.  OS)." 

The  (piestion  of  the  scope  of  the  commerce  clause  was  again 
considered  in  Pensacola  Teleg.  Co.  v.  ^Veslern  U.  Tcleg.  Co.  9G 
U.  S.  1,  9,  12  (24  L.  ed.  708,  710,  712)  involving  the  validity 
of  a  statute  of  Florida,  which  assumed  to  confer  upon  a  local 
telegraph  company  the  exclusive  right  to  establish  and  main- 
tain lines  of  ekctric  telegraph  in  certain  counties  of  Florida. 
This  court  lield  the  act  to  be  tmconstitntional.  Chief  Justice 
Waite,  delivering  its  judgment,  said:  "Since  the  case  of  (ith- 
hons  V.  ()(/(h'ii,  9  Wheat.  1  ((>  L.  ed.  23),  it  has  never  been 
doubted  that  comnurcial  intercourse  is  an  element  of  commerce 
which  comes  within  the  reguuiting  power  of  Congress.  Post- 
offices  an<i  post  roads  are  established  to  facilitate  the  trans- 
mission of  inlelligence.  Both  connnerce  and  the  postal  service 
are  placed  within  the  power  of  Congress,  because,  being  national 
in  their  operation,  they  should  be  under  the  protecting  care  of 
the  Xatiomil  Government.  The  powers  thus  granted  are  not  con- 
fined to  the  'nstrumentalities  of  commerce,  or  the  postal  service 


LOTTERY  CASE. 


m 


known  or  in  use  when  the  Constitution  was  adopted,  but  they 
keep  pace  with  the  progress  of  the  country,  and  adapt  them- 
selves to  tlie  new  developments  of  time  and  circumstances.  Tliey 
extend  from  tlie  horse  with  its  rider  to  the  stage  coach,  from  the 
sailing  vessel  to  the  steamboat,  from  the  coach  and  the  steam- 
boat to  the  railroad,  and  from  the  railroad  to  the  telegraph,  as 
these  new  agencies  are  successively  brought  into  use  to  meet  the 
demands  of  increasing  jxipulatipn  ami  wealth.  They  were  in- 
tended for  the  government  of  the  business  to  which  they  relate, 
at  all  times  and  under  all  circumstances.  As  they  were  in- 
trusted to  the  general  Government  ior  the  good  of  the  nation 
it  is  not  only  the  right,  but  the  duty,  of  Congress  to  see  to  it 
that  intercourse  among  the  States  and  the  transmission  of  in- 
telligence are  not  obstructed  or  unnecessarily  encnmbered  by 
State  legidation.  The  electric  telegraph  marks  an  epoch  in  the 
progress  of  time.  In  a  little  UKjre  than  a  quarter  of  a  century 
it  has  changed  the  habits  of  business,  and  Ix^come  one  of  the 
necessities  of  commerce.  It  is  indispensable  as  a  means  of 
intercomnuuiicatio}!,  but  especially  is  it  so  in  commercial  trans- 
actions.'' In  his  dissenting  opinion  in  tutiC  case  ^Ir.  Justice 
Field  speaks  of  the  importance  of  the  telegraph  ''as  a  moans 
of  intercourse,"  and  of  its  constant  use  in  commercial  trans- 
actions. 

In  Co.  of  Mobile  v.  Kimhall,  102  U.  S.  G91  (20  L.  ed.  238), 
]\Ir.  .lustice  Field,  delivering  the  judgment  of  the  court,  said: 
"Commerce  with  foreigii  countries  and  among  the  States,  strict- 
ly considered,  consists  in  intercourse  and  trafHc,  including  in 
these  terms  navigation  and  the  transportation  and  transit  of 
persons  and  property,  as  well  as  the  purchase,  sale,  and  ox- 
change  of  commodities."  This  principle  was  expressly  reaf- 
firmed in  Glouccsler  Ferry  Co.  v.  Fcnnsylvanki,  114  IT.  S. 
190,  208  (29  L.  ed.  158,  101,  1  Inters.  Com.  Eep.  382,  5  Sup. 
Ct.  Kep.  820). 

A])|)lving  the  doctrine  announced  in  Pensacola  Tel.  Co.  v. 
Western  U.  Tel.  Co.,  it  was  held  in  Tel.  Co.  v.  Texas,  105  V.  S. 
400  (20  L.  ed.  1007),  that  the  law  of  a  State  imposing  a  tax  on 
private  telegraph  messages  sent  out  of  the  State  was  unconsti- 
tutional, as  Ix'ing,  in  effect,  a  regulati(m  of  interstate  commerce. 

In  liroirn  v.  Houston,  114  if.  S.  030  (29  L.  ed.  200,  5  Sup. 
Ct.  Kep.  1095),  it  was  declared  by  the  Court,  speaking  by  ^Ir. 
Justice  Bradley,  that  ''the  power  to  regulate  commerce  among 


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the  several  States  is  granted  to  Congress  in  terms  as  absolute 
as  is  the  power  to  regulate  commerce  with  foreign  nations." 
The  same  thought  was  expressed  in  Bowman  v.  (Jhicaijo  &  N. 
ir.  R.  Co.  125  U.  S.  4(55,  482  (^1  L.  ed.  TOO,  1  Inters.  Com. 
Kcp.  823,  8  Sup.  Ct.  Itep.  081),  1002)  ;  Crutclier  v.  Kenluckij, 
141  U.  8.  47,  58  (35  L.  ed.  049,  052,  11  Sup.  Ct.  Kep.  851), 
and  PiUsbunj  cO  S.  Coal  Co.  v.  Bates,  150  U.  S.  587  (3i)  L. 
ed.  543,  5  Inters.  Com.  Kej).  30,  15  Sup.  Ct.  Ilt^p,  415). 

In  rickard  v.  rullman  Soidhem  Car  Co.,  117  U.  S.  34  (21) 
L.  ed.  785,  0  Su]).  Ct.  Ivep.  035),  it  was  said  tt)  he  settled  by  the 
adjudged  cases  that  to  tax  '*the  transit  of  passengers  from 
fori'igu  countries  or  between  the  States  is  to  reguhite  eoumierce." 

In  Wcslcni  LI.  Tel.  Co.  v.  remlMon,  122  U.  S.  347,  350 
(30  L.  ed.  1187,  1188,  1  Inters.  Com.  Kep.  300,  7  Sup.  Ct. 
Itep.  1120),  the  court  recognized  the  conuuerce  with  foreigni 
countries  and  among  the  States  which  Congress  could  regulate 
as  including  not  only  the  oxehange  and  transportation  of  com-* 
modities,  or  visible,  tangible  things,  but  the  carriage  of  persons, 
and  the  transmission  by  telegraph  of  ideas,  wishes,  orders,  and 
intelligence.  See  also  liallcrinaii  v.  Western  LI.  Tel.  Co.,  127 
U.  S.  411  (32  L.  ed.  22'J,  2  Inters.  Com.  Ivep.  5!),  8  Sup.  (^t. 
IJep.  1127),  and  Leloai)  v.  Port  of  Mobile,  127  U.  S.  040 
(32  L.  (d.  311,  2  Inters.  Com.  I^p.  134,  fi  Sup  Ct.  Kep.  1380). 

In  Corinijton  cO  C.  Jiridtje  Co.  v.  Kentucky,  154  U.  S.  204, 
218  (38  L.  ed.  1)02,  008,  4  Inters.  Com.  Kep.  041),  050,  14  Sup. 
Ct.  Kej).  1087,  101)2),  the  (piestion  was  as  to  the  validity,  under 
the  coumierce  clause  of  the  Constitution,  of  an  act  of  the  Ken- 
tucky legislature  relating  to  tolls  to  Ik?  charged  or  received 
for  ])assiug  over  the  bridge  of  the  Covington  &  Cincinnati 
Bridge  Company,  a  corporation  of  both  Kentucky  ami  Ohio, 
erectid  between  Covington  and  Cincinnati.  A  State  enact- 
ment prescribing  a  rate  ui  toll  on  the  bridge  was  held  to  be  un- 
cunsliriitional,  as  an  unauthorized  regulation  of  interstate  com- 
merce. Tho  court,  realiirming  the  principles  announced  iu 
Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  11)0  (21)  L. 
ed.  158,  1  Inters.  Com.  Kcip.  382,  5  Sup.  ('t.  Ke|).  820),  and 
in  Wuuash,  ^7.  L.  £  P.  R.  Co.  v.  Illinois,  118  U.  S.  557  (30  L. 
ed.  244,  1  Inters,  dnw.  Kep.  31,  7  Suj).  Ct.  Kejx  4),  said,  among 
other  things:  ^'Conuuerce  was  defiiunl  in  Gibbons  v.  Ondcn,  I) 
Wheat.  1,  181)  (0  L.  ed.  23,  08),  to  l)e  'intercourse,'  an<l  tho 
thousands  of  people  who  daily  pass  and  repass  over  this  bridge 


6ilW)piaiW'ffi<Pilf  Hgt^Miirggj 


C\ 


p.  Ct. 


LOTTERY  CASE. 


573 


may  bo  as  truly  said  to  bo  engaged  in  conimorco  as  if  tboy  wove 
shipping  carg(X>s  of  merchandise  from  A'ow  York  to  Liverpool. 
While  the  bridge  compptiy  is  not  itself  a  common  carrier,  it 
affords  a  highway  for  such  carriage,  and  a  toll  upon  such  bridge 
is  as  much  a  tax  upon  commerce  as  a  toll  upon  a  turn])ike  is  a 
tax  upon  the  traffic  of  such  turn})ike,  or  the  charges  upon  a 
ferry  a  tax  upon  the  commerce  across  a  river." 

At'  the  present  term  of  the  court  we  said  that  "transportation 
for  others,  as  an  independent  business,  is  connnerce,  irrespective 
of  the  puri)oso  to  sell  or  retain  the  goods  which  the  owner  may 
entertain  with  regard  to  them  after  they  shall  have  been  de- 
livered." Ilanley  v.  Kansas  City  SoiiUicrn  It.  Co.,  187  U.  S. 
C17  (ante,  p.  214,  23  Sup.  Ct.  Itep.  2U). 

This  reference  to  prior  adjudications  could  be  extended  if 
it  were  necessary  to  do  so.  The  cases  cited,  however,  sutliciently 
indicat(>  the  grounds  u])on  which  this  court  has  jiroeeeded  when 
determitung  the  meaning  and  scope  of  the  connnerce  clause. 
They  show  that  commerce  among  the  States  endiraces  naviga- 
tion, intercourse,  communication,  traffic,  the  transit  of  persons, 
and  the  transmission  of  messages  by  telegraph.  They  also 
show  that  the  power  to  regulate  connnerce  among  the  several 
States  is  vested  in  Congress  as  absolutely  as  it  would  be  in  a 
single  Government,  having  in  its  constitution  the  same  restric- 
tions on  the  exercise  of  the  power  as  are  tVmnd  in  the  Constitu- 
tion of  the  United  States;  that  such  power  is  plenary,  com- 
plete in  itself,  and  nuiy  be  exerted  by  Congress  to  its  utmost 
extent,  subject  onlij  to  such  limitations  as  the  Constitution  im- 
I)oses  u]K)n  the  exercise  of  the  powers  granted  by  it ;  and  that 
in  determining  the  character  of  the  regulations  to  be  adopted 
Congress  has  a  large  discretion  which  is  not  to  bo  controlled  by 
the  courts,  simply  becaiise,  in  their  opinion,  such  regulations 
may  not  be  the  best  or  most  effective  that  could  be  employed. 

We  come,  then,  to  inquire  whether  there  is  any  solid  founda- 
tion upon  which  to  rest  the  contention  that  Congress  may  not 
regulate  the  carrying  of  lottery  tickets  from  one  State  to  an- 
other, at  least  by  corporations  or  companies  whose  business 
it  is,  for  hire,  to  carry  tangible  property  from  one  state  to 
another. 

It  was  said  in  argument  that  lottery  tickets  are  not  of  any 
real  or  sid)stantial  value  in  themselves,  and  therefore  are  not 
subjects  of  connnerce.     If  that  were  conceded  to  be  the  only 


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AMERICAN  CRIMINAL  REPORTS. 


legal  test  as  to  what  are  to  be  deemed  subjects  of  the  commerce 
that  may  be  regulated  by  Congress,  we  caniiut  accept  as  accui-ate 
the  broad  statement  that  such  tickets  are  of  no  value.  UjHjn 
their  face  they  showed  that  the  lottery  company  offered  a  largo 
capital  prize,  to  be  paid  to  the  holder  of  the  ticket  winning  the 
prize  at  the  drawing  ailvertised  to  be  held  at  Asuncion,  Para- 
guay. Money  was  placed  on  deposit  in  difTerent  banks  in  tlie 
United  States  to  be  applied  by  the  agents  representing  the  lot- 
tery company  to  the  prompt  i)ayment  of  })rizes.  These  tickets 
were  the  subject  of  tralKc;  they  could  have  been  sold;  and  the 
holder  was  assured  that  the  company  would  pay  to  him  the 
si mount  of  the  prize  drawn.  That  the  holder  might  not  have 
•jv.'v  i;ble  to  enforce  his  claim  in  the  courts  of  any  country 
making  the  drawing  of  lotteries  illegal,  and  forbidding  tlio 
circulation  of  lottery  tickets,  did  not  change  the  fact  that  the 
tickets  issued  by  the  foreign  company  represented  so  mucli 
money  payable  to  the  person  holding  them  and  who  might  draw 
the  prizes  aiKxed  to  them.  Even  if  a  holder  did  not  draw  a 
]irize,  the  tickets,  before  the  drawing,  had  a  money  value  in 
the  market  among  those  who  chose  to  sell  or  buy  lottery  tickets. 
In  short,  a  lottery  ticket  is  a  sid:»jeet  of  traffic,  and  is  so  desig- 
nated in  the  act  of  i.S95.  28  Stat.  1)03  (IJ.  S.  Comp.  Stat. 
11)01,  p.  3178).  That  fact  is  not  without  signiiicance  in  view 
of  what  this  court  has  said.  That  act,  counsel  foV  the  accused 
well  remarks,  was  intended  to  supplement  the  ])rovisions  of 
l)rior  acts,  excluding  lottery  tickets  from  the  mails,  and  ])ro- 
hibiting  the  importation  of  lotteiy  matter  from  abroad,  and  to 
prohibit  the  act  of  causing  lottery  tickets  to  be  carried,  and 
lottery  advertisements  to  be  transferred  fr(jm  one  State  to  an- 
other by  any  means  or  method.  15  Stat.  190  (cluij).  240); 
17  Stat.  302  (chap.  SS.')) ;  19  Stat.  90  (chap.  ISO)  ;  \lc\\  Stat. 
S  3s9-i  (r.  S.  Comp.  Stat.  1901,  p.  2(;r)9)  ;  20  Stat.  405  (chap. 
908);  28  Stat.  903,  chap.  191, (U.  S.  Comp.  Stat.  1901,  p. 
3178). 

We  are  of  opinion  that  lottery  tickets  are  subjects  of  traffic, 
and  therefore  are  subjects  of  commerce,  and  the  regulation  of 
the  carriage  of  such  tickets  from  State  to  State,  at  least  by  in- 
dejKMident  carriers,  is  a  regulation  of  connnerce  among  the  sev- 
eral States, 

But  it  is  said  that  the  statute  in  question  does  not  regulate 
the  carrying  of  lottery  tickets  from  State  to  State,  but  by  punish- 


':r3!aiBi 


LOTTERY  CASE. 


575 


iiig  those  who  cause  them  to  be  so  carried  Congress  in  effect 
prohibits  such  carrying;  that  in  respect  of  the  carrying  from 
one  State  to  anotlier  of  articles  or  things  that  are,  in  fact,  or 
according  to  usage  in  business,  the  subjects  of  c-dnmirrcu,  the 
authority  given  Cungress  was  not  to  prohibit,  but  only  to  ve(ju- 
late.  Tliis  view  was  earnestly  pressed  at  the  bar  by  learned 
counsel,  and  must  be  examined. 

It  is  to  be  renutrked  that  the  (,'onstitution  does  nut  (lefnic  what 
is  to  be  deemed  a  legitimate  regulation  of  interstatL-  cnnuiierce. 
In  GilAwns  v.  Ocjdcii  it  was  said  that  the  puwer  In  rtgulate 
such  connuerce  is  the  power  to  prescribe  the  rule  by  which 
it  is  to  be  governed.  IJut  this  general  observation  leaves  it 
to  be  determined,  when  the  question  comes  before  ilic  court, 
whether  Congress,  in  prescribing  a  particular  rule,  lias  ex- 
ceeded its  power  under  the  Constitution.  While  our  (iovern- 
ment  must  Ik3  acknowledged  by  all  to  be  one  of  enunu'ralcil  pow- 
ers, M'CulJoiKjh  r.  Maviihud,  4-  Wheat.  31(1,  M)a,  407  (4  L. 
ed.  570,  (iOl),  the  Constitution  does  not  attempt  to  sot  forth 
all  the  means  by  which  such  powers  may  be  carried  into  execu- 
tion. It  leaves  to  Congress  a  large  discretion  as  to  tli(>  means 
that  may  be  employed  in  executing  a  given  powei*.  The  sound 
construction  cd  the  Constitution,  this  court  has  said,  "must 
allow  to  the  National  Legislature  that  discretion,  with  vospect 
to  the  means  by  wiiich  the  powers  it  confers  are  to  be  carried 
into  execution,  which  Avill  enable  that  body  to  jterforiu  the 
high  duties  assignietl  to  it,  in  the  manner  most  beiicllcial  to  the 
people.  I-et  the  end  be  legitimate,  let  it  be  within  tlic  scope  of 
the  Constituti<»n,  and  all  means  which  are  appropriate,  which 
are  plainly  adapted  tf)  that  end,  which  are  not  proliiliiti  d,  but 
consist  with  the  letter  and  spirit  of  the  Constitution,  are  con- 
stituti<.nal."     4  Wheat.  4il   (4  L.  ed.  00.-)). 

We  have  said  that  the  carrying  from  State  to  State  of  lottery 
tickets  constitutes  Interstate  Couunerce,  and  that  the  regida- 
tion  of  such  commerce  is  within  the  power  of  Cou'nc-^s  under 
the  Constitution.  Are  we  pre})ared  to  say  that  a  i)rovi<inn  which 
is,  in  effect,  a  proliilj'dioii  of  the  carriage  of  such  articles  from 
State  to  State  is  not  a  fit  or  appropriate  mode  for  the  irfjidation 
of  that  particular  kind  of  couunerce?  If  lottery  tratHc.  carried 
on  through  interstate  commerce,  is  a  matter  of  which  Congress 
may  take  cognizance  and  over  which  its  power  nuiy  Ix'  exerted, 
can  it  be  possible  that  it  must  tolerate  the  traffic,  and  simply 


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AMERICAN  CRIMINAL  REPORTS. 


ill 
II 


regulate  tlic  ninnner  in  wlilch  it  may  Ix?  carried  on?  Or  may 
not  t'oiigrcss,  fur  the  protection  of  tlie  ])eoi)lo  of  all  the  States, 
and  un(h'i'  the  power  to  regulate  interstate  commerce,  (levisc 
such  means,  witliin  the  scoj)e  of  the  ('(institution,  and  not  pro- 
liibited  liy  it,  as  will  drive  that  tratiic  out  of  commerce  among 
the  States  t 

In  (letcniiining  Avhelher  regulation  may  not  under  some  cir- 
cumstances properly  take  the  form  or  have  the  etfect  of  ])ro- 
liibitioii,  t!ie  nature  of  the  interstate  tralHc  which  it  was  sought 
by  the  act  of  May  2d,  l.sO.'),  to  suppress  cannot  he  overlooked. 
When  ''uacting  that  statute  Congress  no  douht  shared  the  vicnvs 
upon  the  sulij(>ct  of  lottei'ies  heretofore  expressed  by  this  court. 
In  I'lidlcii  r.  Vinjhila,  S  JIow.  \i\:i,  KIS  (12  L.  ed. 'l();]()),  after 
observing  that  the  sup])ression  of  nuisances  ijijurious  to  public 
health  (U*  morality  is  among  the  nmst  iin[)ortant  duties  of  gov- 
ernment, this  contt  said:  "Kxpcrience  has  shown  that  the  com- 
mon forms  of  gand)iing  are  comparatively  innocuous  ^\•hvn 
placed  in  contrast  with  the  widespread  pestilence  of  lotteries. 
The  former  are  confined  to  a  few  persons  and  ])laces,  but  the 
latter  infests  the  whole  conunnnity;  it  enters  every  dwelling; 
it  reaches  every  class;  it  pnys  u])on  the  hard  earnings  of  the 
poor;  it  plunders  the  ignorant  and  sini])le."'  In  other  cases 
■we  have  adjudged  that  authority  given  by  legislative  enactment 
to  carry  on  a  lottery,  although  based  upon  a  coiisideraticju  in 
money,  was  not  protected  by  the  contract  clause  of  the  Constitu- 
tion; this,  for  the  reason  that  no  State  nniy  bargain  away  its 
power  to  protect  the  public  morals,  nor  excuse  its  failure  to  per- 
form a  public  duty  by  saying  that  it  hail  agreed,  by  legislative 
enactment,  not  to  do  so.  >S7o/)t'  r.  Mississippi,  101  U.  S.  814- 
(2o  L.  ed.  1079);  Douglas  v.  Keniuckij,  1G8  U.  S.  488  (-12 
L.  ed.  r.r.;5,  is  Sui).  Ct.  Kep.  lU!)). 

If  a  State,  when  considering  legislation  for  the  suppression 
of  lotteries  within  its  own  limits,  may  prnperly  take  into  view 
the  evils  that  inhere  in  the  raising  <!f  money,  in  that  mode, 
why  may  not  Congress,  invested  with  the  i)ower  to  regulate 
conuneree  among  the  several  States,  provide  that  such  connnerco 
shall  not  Ik."  polluted  by  the  carrying  of  lottery  tickets  from 
one  State  to  another  "i  In  this  connection  it  must  not  be  for- 
gotten that  the  power  of  Congress  to  regulate  commerce  among 
the  States  is  plenary,  is  complete  in  itself,  and  is  subject  to  no 
limitations  except  such  as  may  be  f.amd  in  the  Constitution. 


iUUOIlP' 

o 


II  no-; 


LOTTERY  CASE. 


577 


What  provision  in  that  instrument  can  be  regarded  as  limitinu; 
tlic  I'xcrt'ise  of  the  power  granted?  What  clause  can  be  cited 
which,  in  any  degree,  countenances  the  suggestion  that  one  may, 
of  right,  carry  or  cause  to  be  carried  from  one  State  to  anotlier 
that  which  will  harm  the  public  morals  ?  We  cannot  tliiidv  of 
any  clause  of  that  instrument  that  could  ]iossibly  be  invoked 
by  tin  ISC  who  assert  their  right  to  send  lottery  tickets  from 
State  to  State  except  the  one  providing  that  no  person  shall 
be  depi'ived  of  his  liberty  without  due  process  of  law.  We  have 
said  that  the  liberty  protected  by  the  Constitution  embraces 
the  right  to  be  free  in  the  enjcyment  of  one's  faculties;  "to 
be  free  to  use  them  in  all  lawful  ways;  to  live  and  work  where 
he  will;  to  earn  his  livelihood  by  any  lawful  calling;  to  pursue 
any  ]ivelihoo<l  or  avocation,  and  for  that  purpose  to  entt'r  into 
all  cfinti-acts  which  may  be  proper."  Alhjri/cr  v.  Louisiana, 
Kir)  U.  S.  57M,  589  (41*1..  ed.  s;]2,  S35,  17  Sup.  Ct.  Rep.  4l>7, 
431).  Jjut  surely  it  will  not  be  said  to  be  a  jiart  of  anyone's 
liberty,  as  recognized  by  the  supreme  law  of  the  land,  that  he 
shall  be  allowed  to  introduce  into  conniierco  among  the  States 
an  element  that  will  be  confessedly  injurious  to  the  public 
morals. 

If  it  be  said  that  the  act  of  1895  is  inconsistent  with  the  10th 
Amendment,  reserving  to  the  States  respectively,  or  to  the 
people,  the  jiowers  not  delegated  to  the  United  States,  the  answer 
is  that  the  ])o\ver  to  regulate  commerce  among  the  States  has 
been  exi)ressly  delegated  to  Congress. 

Besides,  Congress,  by  that  act,  does  not  assume  to  interfere 
with  tralHc  or  connnerce  in  lotterv  tickets  carried  on  exclusivelv 

t  t. 

within  the  limits  of  any  State,  but  has  in  view  only  commerce 
of  that  kind  among  the  several  States.  It  has  not  assunu'd  to 
interfere  Avith  the  comi)letelv  internal  affairs  of  anv  State, 
and  has  only  legislated  in  resjiect  of  a  matter  which  concerns 
the  people  of  the  United  States.  As  a  State  may,  for  the  pur- 
pose of  guarding  the  morals  of  its  own  people,  forind  all  sales 
of  lottei'v  tickets  within  its  limits,  so  CongTcss,  for  the  purpose 
of  guarding  the  people  of  the  United  States  against  the  "wide- 
spread p<^stilence  of  lotteries"  and  to  protect  the  commerce  Avhich 
concerns  all  the  States,  may  prohibit  the  carrying  of  lottery 
tickets  from  one  State  to  another.  In  legislating  upon  the  sub- 
ject of  the  traffic  in  lottery  tickets,  as  carried  on  through  inter- 
state oommercc.    Congress   only   supplemented   the   action   of 

Vol.  XIII— 37 


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578 


AMERICAN  CRIMINAL  REPORTS. 


thoso  States — perhaps  all  of  tluin — \vliich,  for  tlio  protection 
of  the  jmblic  morals,  prohibit  the  drawing  of  lotteries,  a.s  wc'.l 
as  a  sale  or  cireulatiou  of  hittcry  tickets,  within  their  respec- 
tive limits.  It  said,  in  effect,  that  it  would  not  permit  the  de- 
clared policy  of  the  States,  which  sought  to  protect  their  people 
against  the  mischief  of  the  lottery  business,  to  be  overthrown 
or  disregarded  by  the  agency  of  interstate  cttmmerc(>.  We 
should  hesitate  long  bct'ore  adjudging  that  an  evil  of  such  ap- 
palling character,  carried  on  through  interstate  commerce,  can- 
not be  met  and  crushed  by  the  only  power  com|)et(  nt  t(j  that 
end.  We  say  comju'tent  to  that  end,  because  ('ongress  iilone 
has  the  power  to  occui)y,  by  legislation,  the  wludc  field  of 
interstate  commerce.  What  was  said  by  this  court  upon  a 
former  occasion  nniy  well  Ix'  here  repeated:  "The  franiers  of 
the  ("< institution  never  intended  that  the  legislative  j)o\ver  of 
the  nation  should  find  itself  incapable  of  disposing  of  a  subject- 
nuittcr  si)ecifically  connnitted  to  its  charge."  In  re  liahtrr,  140 
U.  S.  w-f."),  .">(iJ}  {sub  nom.  Wilkcrson  v.  Itahrcr,  J]5  L,  ed.  .")72, 
577,  11  Sup.  Ct.  Uej).  S(>.-),  8(10).  Tf  the  ca.rying  of  lottery 
tickets  from  one  State  to  another  1m^  interstate  commerce,  and 
if  Congress  is  of  opinion  that  an  effective  ri'gulation  for  the 
su])])rcssion  of  lotteries,  carried  on  through  such  commerce,  is 
to  make  it  a  criminal  olfense  to  cause  lottery  tickets  to  be 
carried  from  one  State  to  an<ither,  we  know  of  no  authority  in 
the  courts  to  hold  that  the  means  thus  devised  are  not  ajipro- 
priate  and  necessary  to  j)rotect  the  country  at  large  against 
a  s])eci(  s  of  interstate  connuerce  which,  although  in  general  use 
and  siiUicwhat  favored  in  Ix)th  National  and  State  legislation  in 
the  e:!riy  history  of  the  country,  has  grown  into  disrepute,  and 
has  lii'ciime  offensive  to  the  entire  ]K':)ple  of  the  miti(»n.  It  is 
a  kind  of  traffic  which  no  one  can  be  entitled  to  pursue  as  of 
right. 

That  regulation  may  sometimes  appropriately  assume  the 
form  of  prohibition  is  also  illustrated  by  the  case  of  diseased 
cattle,  transported  from  one  State  to  another.  Such  cattle  may 
have,  notwithstanding  their  condition,  a  value  in  money  for 
some  purposes,  and  yet  it  cannot  be  doubted  that  Congress, 
under  its  jiower  to  regidafe  connnerce,  may  either  provide  for 
their  being  inspected  before  transportation  begins,  or,  in  its 
discretion,  may  prohibit  their  l)eing  transported  from  one  State 
to  another.     Indeed,  by  the  act  of  :May  20th,  188-t,  chap.  GO 


TTTT^ 


is 


LOTTERY  CASE. 


579 


[•2:\  Stat,  at  L.  32,  S  0,  [J.  S.  Comp.  Stat.  JiJOl,  p.  ai.s4l,  ('un- 
dress lias  pi'ovidid :  "That  no  railroad  coiui)auy  williiu  tlio 
I'liiicil  States,  or  tlii'  owners  or  masters  of  any  steam  or  sailing, 
or  other  vessel  or  hoat,  shall  receive  tor  transportation  or  trans- 
port, from  one  State  or  Territory  to  another,  or  from  any  State 
into  the  District  of  ('olumhia,  or  from  the  District  into  any 
State,  any  live  stock  all'ected  with  any  contagious,  infectious, 
or  coinnninicahle  disease,  and  especially  the  disease  known  as 
pleuro-pneunKjnia;  nor  shall  any  person,  com[)aiiy,  or  corpora- 
tion deliver  for  such  transportation  to  any  railroad  company 
or  master  or  owner  of  any  Ixnit  or  vessi'l,  any  live  stock,  kiiow- 
iiig  th(  ni  to  be  affected  with  any  contagious,  infectious,  or  coni- 
municiihle  disease;  nor  shall  any  person,  company,  or  corjjora- 
tion  ilrive  on  foot  or  transport  in  [)rivate  conveyance  from  one 
State  or  Territory  to  another,  (»r  from  any  State  into  the  Dis- 
trict of  ('ohunl)ia,  or  fn^ni  the  District  into  any  State,  any  live 
stock,  knowing  them  to  be  aifected  wilh  any  contagious,  infco- 
tious,  or  communicable  disease,  and  especially  the  disease  known 
as  ]d(Miro-|)neumonia."  Held  v.  Colorado,  1S7  U.  S.  I.'i7, 
present  term.  (23  Sup.  Ct.  liep.  i)2 ;  47  L.  cd.  108;  12  Am. 
("rim.  Kep.  500.) 

'  The  act  of  July  2d,  1890  (20  Stat,  at  L.  209,  chap,  017,  U. 
S.  Comp.  Stat.  1901,  p.  3200),  known  as  the  Shernnm  anti- 
trust act,  and  which  is  based  upon  the  ])ower  of  Congress  to 
regulate  commerce  among  the  States,  is  an  illustration  of  the 
proposition  that  regulation  may  take  the  form  of  jn'ohibition. 
The  object  of  that  act  was  to  jirotect  trade  and  commerce 
against  unlawful  restraints  and  monopolies.  To  accomi)lish 
that  object  (Vrngrcss  declared  certain  contracts  to  be  illegal. 
That  act,  in  elfect,  prohibited  the  doing  of  certain  things,  and 
its  i)rohibitorv  clauses  have  been  sustained  in  several  cases  as 
valid  under  the  jiowcr  of  Congress  to  regulate  interstate  com- 
merce. C  nil  cd  Sidles  V.  Tratis-Mission  Freight  Asso.  l(!(i  U.  S. 
2!)()  (11  L.  ed.  1007,  17  Sup.  Ct.  Eep.  510)  ;  Uniled  Slates  v. 
Joint  Trajjic  Asso.  171  U.  S.  505  (43  L.  ed.  259,  19  Sup.  Ct. 
Rep.  25) ;  Addyslon  Pipe  &  Steel  Co.  v.  United  States,  175  U. 
S.  211  (44  L.  e<l.  13G,  20  Sup.  Ct.  Rep.  96).  In  the  case  last 
named  the  court,  referring  to  the  power  of  Congress  to  regu- 
late commerce  among  the  States,  said :  "In  Gibbons  v.  Ogden, 
supra,  the  power  was  declared  to  be  complete  in  itself,  and  to 
acknowledge  no  limitations  other  than  are  prescribed  by  the 


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580 


AMERICAN  CRIMINAL  REPO' 


Constitution.  Under  this  ^rnnt  of  jiowor  to  Conpvss  tlint  IhkIv, 
in  our  jutlginciit,  may  enact  such  K'fjishition  m  shall  dcchu'c 
void  and  jtroliihit  the  pcrfornunicc  of  any  contract  h(!t\V('cn 
individuals  or  corporatidus  where  th(^  natural  and  direct  eil'ccl 
of  such  a  contract  will  he,  when  carried  out,  to  directly,  and 
not  as_a  mere  incident  to  other  and  innocent  purpons,  rejiulatc 
to  niiy  suhstantial  extent  interstate  conniicrce.  (Atnl  when  wc 
s|)eak  of  interstate  we  also  include  in  our  nieaiMUf;  forciun 
conniierce.)  We  di>  not  assent  to  tin;  oorrectiu'ss  of  the  ])ro])o- 
sitioii  that  the  constitutional  i^uaranty  of  lilM-rty  to  the  individ- 
ual to  outer  into  |)rivatc  contracts  limits  the  jviwer  of  ('oiiji'rc-s 
and  prevents  it  from  le^islatinj;  upon  the  suhiect  of  contracts 
of  tlu!  class  mentioned.  The  power  to  rciiii'  interstate  com- 
merce is,  as  stated  hy  ( 'hicf  flustice  Marshal  and  complete 
in  ( "oniiTcss,  an<l  there  is  no  linutatiou  in  tiie  iirant  of  tlu; 
power  which  excludes  private  contracts  of  the  nature  in  (pies- 
ti^)n  from  the  jurisdiction  (d'  that  ImxIv.  Xor  is  any  such  linnta- 
tion  contained  in  that  other  clause  of  the  (\mstitution,  which 
providers  that  no  person  shall  l>e  deprived  of  lil'e,  lil)erty,  or 
pro]urty  without  due  process  of  hiw."  A;;:ain :  "The  ])rovision 
in  the  Constitution  do<'s  not,  as  we  Ixdieve,  exclude  ( "on^i'css 
from  lep^islating  with  reijard  to  contracts  of  the  ahove  nature! 
while  in  the  exercise  of  its  constitutional  rif^ht  to  rcirulate  com- 
Ujcrce  amonii'  tlu!  States.  On  the  contrary,  wc  thiidc  the  i)ro- 
vision  re<iarilin{^  the  liherty  of  the  citizen  is,  to  some  extent, 
limited  l)y  the  conunerce  clause  of  the  Constitution,  and  that 
the  power  of  Congress  to  regulatt!  interstate  commerce  comprises 
the  right  to  enact  a  hxw  prohihUhuj  the  citizen  from  entering 
into  those  private  c<nitracts  which  directly  and  suhstantially, 
and  not  merely  indirectly,  remotely,  incidenti'lly,  and  collat- 
erallv,  regulate  to  a  greater  or  less  degree  commerce  amongst  the 
States." 

That  regulation  may  sometimes  take  the  form  or  have  the 
e^ect  of  ])roliil)ition  is  also  illustrated  in  the  case  of /n  re  liahrcr, 
140  U.  S.  045  {WUhcrson  v.  Rahrcr,  JiT)  L.  ed.  572,  11  Sup. 
Ct.  Rep.  SG5).  In  Mugler  v.  Kansas,  12,'}  U.  S.  623  (;}1  L.  ed. 
205,  8  Sup.  Ct.  Kep.  27:0,  it  was  adjudged  that  State  h'gisla- 
tion  ])rohil)iting  the  nnmufacture  of  spirituous,  malt,  vinous, 
fermented,  or  other  intoxicating  lifpiors  within  the  limits  of 
the  State,  to  l)e  there  sold  or  hartered  for  general  use  as  a  l)ever- 
age,  does  not  necessarily  infringe  any  right,  privilege,  or  im- 


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IT  Tl 


4i\: 


11 


flint  ImmIv, 
11  (Iccinn. 
t  Ixdwccii 
pcct  offct't 
vtlv,  mikI 
,  rc^i'iiiiitc 
wlit'ii  we 
'X  ftirciiiu 
he  ])r()|)o- 
'  iii<livii|- 
C^lllf>•|•('-!:^ 

('«)Iltr;i('t3 

tiltC    ('(llll- 

complete 
It  of  tho 
in  (pH's- 
'li  liiiiitM- 
n,  which 
l)ort_v,  or 
provision 
(Vjii^rcss 

0  luitun! 
ntt'  coiii- 
tho  ])ro- 
i  oxiciit, 
111(1  that, 
)iiipris('.s 
ontoriiin' 
niitiiillv, 

1  colhi't- 

Illi^St  tlio 

IJIVO   flic 
Rdhrcr, 
3  1   Sup. 
1  L.  ('(1. 
Icjuirt  la- 
vinous, 
niits  of 
a  1)0  vcr- 
or  iiii- 


LOTTERY  CASE. 


581 


iiiunity  socnrcd  hy  tho  ronstitution  of  the  United  States  or  by 
the  aiii('ii(liiu'iils  thereto.     !Sul)se«piently  in  Bowtmui  i.  CItivaiju 
,[•  X.  U'.  A'.  Co.  \2:>  i;.  H.  Itir.  {•,',[  !,.  id.  7»>(),  I  Inters,  ("oiu. 
Kcp.  S2.'{,  S  Slip.  Ct.    Ue)).   (IS{),   lW-2),  this  court  held  that 
ardent  spirits,  distilled  liipiurs,  ale,  and  Ikmt  were  suhjei^ts  nf 
exchange,   Imrter,   and   triillie,   and  were  so  ncojjni/.ed  I>y  the 
ii-ajr<'s  of  ihe  I'oMiniereiiri  world,  as  well  as  liy  the  laws  of  Con- 
gress and  the  decisions  (»f  tho  courts.    In  Lri.sij  v.  Hardin,  l,'}.") 
r.  S.   100  (U  L.  ed.   \-2H,  \l]2,  KJS,  '.i  Inters.  (V)in.  Hep.  80, 
41,  47,  10  Sup.  Ct.  Kep.  (5S1,  (584,  GUO),  the  court  again  liehl 
that  spirituous  licpiora  wimc  rocofrnized  articles  of  coninierce, 
and  declared  a  statute  of  Iowa  j)i'iihil)itiiig  the  sale  within  its 
limits  of  any  intoxicating  liipiors,  except  for  iihariiiaccutical, 
medicinal,  clieniii'al,  or  sacramental  ])urpos('s,  under  a   State 
license,  to  he  repugnant  to  the  commerce  clause  of  the  Constitu- 
tion, if  applied  to  tlu'  sale,  wiihin  the  state,  liy  the  importer,  in 
the  original,  unhroken  i)ackages,  of  such  licpiors  manufactured 
in    and    brought   from    another    State.     Ami    in    dcterniining 
whether  a  Static  could  prohibit  the  sale  within  its  limits,  in 
original  unbroken  ])ackages,  of  ardent  sjiirits,  distilled  li(pi<irs, 
ale,  and  beer,  imported  fnun  another  State,  the  court  said  that 
they  were?  recognized  by  the  laws  of  Cougress  as  well  as  by  the 
commercial  world  "as  subjects  of  exchange,  barter  and  traffic," 
and  that  "whatever  our  individual  views  may  be  as  to  the  dele- 
terious or  dangerous  (pialities  of  jiarticular  articles,  we  cannot 
hold  that  any  articles  which  Congress  recognized  as  subjects  of 
commerco  aro  not  such.'*   '  Lclsy  v.  Hardin,  135  U.  S.  100, 
110,   125. 

Then  followe«l  tho  ])nssagc  by  Congress  of  the  act  of  August 
Sth,  isi)(),  2(5  Stat.  ;}i;5,  chap.  72S  (U.  S.  Comp.  Stat.  litOl, 
p.  ;5177),  ]n'oviding  ''that  all  fermented,  distilled,  or  other 
intoxicating  licpiors  or  ^iipiids  transported  into  any  State  or 
Territory,  or  remaining  therein  for  use,  consumption,  sale,  or 
storage  therein,  shall,  upon  arrival  in  such  State  or  Territory, 
be  subject  to  the  operation  and  etfect  of  the  laws  of  sucli  State 
or  Territory  enacted  in  the  exercise  of  its  police  powers,  to  tho 
same  extent  and  in  the  same  manner  as  though  such  liquids  or 
liquors  had  been  produced  in  such  State  or  Territory,  and  shall 
not  be  exempt  therefrom  by  reason  of  being  introduced  therein 
in  original  packages  or  otherwise."    That  act  was  sustained  in 


I  :    'I 


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■It-i-;    , 

;   ! 

i 

582 


AMERICAN  CRIMINAL  REPORTS. 


the  liahrcr  Case  as  a  valid  exercise  of  tlie  power  of  Congress 
to  regulate  couiuieree  among  the  States. 

In  lihodcs  V.  Iowa,  170  U.  S.  412,  42G  (42  L.  ed.  lo.ss, 
101)6,  18  Slip.  Ct.  Rep.  6(54,  669),  that  statute— all  of  its  pro- 
visions being  regarded — wjte  held  as  not  causing  the  power  uf 
the  State  to  attach  to  an  interstate  coinnierce  shipment  of  in- 
toxicating liquors  "whilst  the  merchandise  was  in  transit  under 
such  shii)ment,  and  until  its  arrival  at  the  point  of  destination 
and  (leliveiy  there  to  the  cDusignee." 

Thus,  under  its  ])ov  er  to  regulate  interstate  eomnwrce,  as 
involved  in  the  transportaticfn,  in  original  packages,  of  ardent 
spirits  from  one  State  to  another,  Congress,  by  the  necessary 
effect  of  the  act  of  1890  made  it  imjiossible  to  transport  such 
packages  to  places  within  a  ])rohibilorv  State  and  there  dis- 
])ose  of  their  contents  by  sale;  although  it  had  Ik'cu  ])reviously 
held  that  ardent  s[»irits  were  recognized  articles  of  eoniniercV' 
and,  until  Congress  otherwise  provider!,  could  be  imported  intd 
a  State,  and  soUl  in  the  original  ]iaekages,  despite  the  will  of 
the  State.  If  at  the  time  of  the  jjassage  of  the  aft  of  18!)()  all 
the  States  had  enacted  liquor  laws  prohibiting  the  sale  of  in- 
toxicating liquors  within  their  risjuctive  linwits,  then  the  act 
woidd  have  had  the  necessary  effect  to  exclude  ardent  spirits 
altogether  from  connnerce  among  the  States;  for  no  one  would 
ship,  for  ])urposes  of  sale,  ])ackages  containing  sueh  spirits 
to  points  within  any  State  that  forbade  their  sale  at  any  time 
or  i)lace,  even  in  unbroken  j)ackages,  and,  iii  addition,  pro- 
vided for  the  seizure  and  fetrfeiture  of  such  paekagt><.  So  that 
we  have  in  the  Jinhi'cr  Ca'^e  a  recognition  of  the  i)rinciple  that 
the  ])ower  of  (.'ongress  to  regulate  interstate  commerce  may 
sometimes  Ix;  exerted  with  the  eifect  «>f  excluding  particular 
articles  from  such  commerce. 

It  is  said,  however,  that  if  in  order  to  suppress  lotteries 
carrie(l  on  through  interstate  commerce,  Congress  may  exchule 
lottery  tickets  from  such  connnerce,  that  principle  leads  neces- 
sarily to  the  conclusion  that  Congress  may  arbitrarily  exclude 
from  commerce  among  the  States  any  article,  conunodity,  or 
thing,  of  whatever  kind  or  nattire,  or  howcn'er  useful  or  valu- 
able, which  it  may  choose,  no  matter  with  what  motive,  to  de- 
clare shall  not  lx>  carried  from  one  State  to  another.  It  will  be 
time  enough  to  consider  the  constitutionality  of  such  legislation 
wlun  we  nuist  do  so.     The  present  case  does  not  require  the 


pp 


LOTTERY  CASE. 


583 


H'CSS 


court  to  declare  the  full  extent  of  the  power  that  CongiTss  may 
exercise  in  the  regulation  of  commerce  among  the  States,  We 
may,  however,  repeat,  in  this  connection,  what  the  cinivt  hns 
heretofore  said,  that  the  power  of  ('ougvess  to  reguhilc  (^m- 
merce  among  the  States,  although  plenary,  cannot  he  ddiued 
arbitrary,  since  it  is  subject  to  such  limitations  or  restrictions 
as  are  i)rescribed  by  the  Constitution.  Tliis  power,  therefore, 
may  not  be  exercised  so  as  to  infringe  rights  secured  or  pro- 
tected by  that  instrument.  It  would  not  Ix;  ditKciUt  to  imagine 
legislation  that  would  l)e  justly  liable  to  such  an  object  inn  as 
that  stated,  and  be  hostile  to  the  objects  for  the  accom})lisliiiient 
of  which  Congress  was  invested  with  the  general  power  to 
regulate  commerce  among  the  several  States.  But,  as  often 
said,  the  possible  abuse  of  a  power  is  not  an  argument  against 
its  existence.  There  is  probably  no  governmental  jiower  that 
may  not  be  exerted  to  the  injury  of  the  public.  If  what  is  done 
by  Congress  is  manifestly  in  excess  of  tlie  jiowers  granted  to 
it,  then  upon  t1>.c-  courts  will  rest  the  duty  of  adjudging  tlint  its 
action  is  uv  ither  legal  nor  binding  ujion  the  people.  IJiit  if 
what  Congres?  does  is  within  the  limits  of  its  powei*,  and  is 
simply  unwise  or  injurious,  the  remedy  is  that  suggested  by 
Chief  .lustifo  ^Marshall  in  Gibbons  r.  Ogdcn.  when  he  said: 
"The  wisdom  and  the  discretion  of  Congress,  their  identity  with 
the  people,  an*l  the  iniluence  which  their  constituents  jiossess 
at  elections,  are,  in  this,  as  in  many  other  instances,  as  tliat, 
for  example,  of  declaring  war,  the  sole  restraints  on  whieh  ihey 
have  relied,  to  secure  tlu  ni  from  its  abuse.  They  are  the  re- 
straints on  which  the  jieople  nnist  often  rely  solely,  in  all  rep- 
resentative Governments." 

The  whole  subject  is  too  important,  and  the  questions  sug- 
gested by  its  consideration  are  too  ditlieult  of  solution,  to  justify 
any  attemj)t  to  lay  down  a  rule  for  determining  in  adviuice 
the  validity  of  every  statute  that  may  Ix'  enacted  under  the  com- 
merce clause.  We  deci''"  nothing  more  in  the  present  ease 
than  that  lottery  tickc  ts  are  subjects  of  traffic  among  those  who 
choose  to  sell  or  buy  them ;  that  \\iv  carriage  of  such  tickets  by 
independent  carriers  from  one  State  to  another  is  therefore  in- 
terstate commerce;  that  under  its  power  to  regulate  conntu>rce 
among  the  several  States  Congress — subject  to  the  limitations 
imposed  by  the  Constitution  upon  the  exercise  of  the  jiowers 
granted — has  plenary  authority  over  such  couunerce,  and  may 


M2 


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m 

m 
I  1 


AMERICAN  CRIMINAL  REPORTS. 


prohibit  the  carriage  of  such  tickets  from  State  to  State;  and 
that  legisLation  to  that  end,  and  of  that  character,  is  not  incon- 
siij^tent  with  any  limitation  or  restriction  imposed  upon  the 
exercise  of  the  powers  granted  to  Congress. 

The  judgment  is  ajfinned. 

Mr.  Chief  "Justice  V\:iaa'M,  with  whom  concur  !^[r.  Justice 
Ijkkwkk,  Mr.  Justice  Siiiuas,  and  Mr.  Justice  Peckham,  dis- 
senting: 

Ahhough  the  1st  section  of  the  act  of  March  2,  1S1)5  (2S 
Stat.  903,  chap.  191;  U.  S.  Comp.  Stat.  1901,  p.  3178),  is  in- 
artificially  drawn,  I  accept  the  contention  of  the  Government 
that  it  makes  it  an  offense  (1)  to  hring  lottery  matter  from 
abroad  into  the  United  States;  (2)  to  cause  such  matter  to 
be  <leposited  in  or  carried  by  the  mails  of  the  United  States; 
(3)  to  cause  such  matter  to  be  carried  from  one  State  to  an- 
other in  the  United  States;  and  further,  to  cause  any  adver- 
tisement of  a  lottery  or  similar  enter[)rise  to  be  brought  into 
the  United  States,  or  be  deposited  tir  carried  by  the  mails,  or 
transferred  from  one  State  to  another. 

The  case  before  us  does  not  involve  in  fact  the  circulation 
of  advertisements  and  the  question  of  the  abridgment  of  the 
freedom  of  the  press;  nor  does  it  involve  the  impiHlation  of 
lottery  matter,  or  its  transmission  by  the  mails.  It  is  concede*! 
that  the  lottery  tickets  in  (piestion  though  purjjortiug  to  1k>  is- 
sue d  by  a  lottery  company  of  Paraguay,  were  priuteMl  in  the 
United  States,  and  were  not  imjwrted  into  the  United  States 
from  any  foreign  country. 

Tl:e  naked  question  is  whether  the  prohibition  by  Congress 
of  the  carriage  of  lottery  tickets  from  one  State  to  another  by 
means  other  than  the  mails  is  within  the  ]>ov>ers  vested  in 
that  body  by  the  Constitution  of  the  United  States.  That  the 
])Ui'i)ose  of  Congress  in  this  ( nactment  was  the  supi)ression  of 
lotteries  cannot  reasomibly  be  denied.  That  purpo.-e  is  avowed 
in  the  title  of  the  act,  and  is  its  natural  and  reasonable  ett'ect, 
and  by  that  its  validity  must  ho  tested.  JI(»dc}:son  v.  Mai/or, 
etc.,  92  U.  S.  2:A),  2<J8  [Henderson  v.  Wickham,  23  L.  ed.  518)  ; 
Minnesota  v.  Barber,  130  U.  S.  313,  320. 

The  power  of  the  State  to  impose  restraints  and  burdens  on 
persons  and  property  in  conservation  and  promotion  of  the 
public  health,  good  order,  and  prosperity  is  a  powi'r  originally 
and  always  belonging  to  the  States,  not  surrendereil  by  them 


LOTTERY  CASE. 


585 


to  the  general  Government,  noi*  directly  restrained  by  the  Con- 
stitution of  the  United  States,  and  essentially  I'xchisive,  and 
the  sni)pression  of  lotteries  as  a  harmful  business  falls  within 
this  power,  connnonly  called  of  jKjlice.  DoikjIus  v.  Kentucky, 
IGS  U.  S.  488  (42  L.  ed.  553,  18  Sup.  Ct.  Hop.  l!)!i). 

It  is  urged,  however,  that  because  Congress  is  cmpowored  to 
regulate  connuerce  between  the  several  States,  it,  therefore,  may 
siii»press  kitteries  by  prohibiting  the  carriage  of  Idtrery  matter, 
Cungress  may,  indeed,  nudce  all  laws  necessary  and  proper  for 
carrying  the  powers  granted  to  it  into  execution,  and  dmdjtless 
an  act  prohibiting  the  carriage  of  lottery  matter  would  lie  nc- 
ces-;ary  and  proper  to  the  execution  of  a  p(»\ver  to  suppress  lot- 
teries;  but  that  power  belongs  to  the  States  and  not  to  Congress. 
To  hold  that  Congress  has  general  police  power  would  be  to 
hold  that  it  may  accomplish  objects  not  intrusted  to  the  general 
Government,  and  to  defeat  the  opei'ation  of  the  10th  Ameudment, 
declaring  that  ''the  powers  not  delegated  to  the  I'liited  States 
by  the  ("onstitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  peojile." 

The  ground  on  which  prior  acts  forbidding  the  tra»isnussion 
of  lottery  matter  by  the  nuiils  was  sustained,  was  that  the  power 
vestetl  in  Congress  to  establish  postoilices  and  post  roads  em- 
braced the  regulation  of  the  entire  postal  system  of  the  country, 
and  that  under  that  power  Congress  might  designate  what  might 
bo  carrii'd  in  the  nuiils  and  what  excluded.  In  re  Jiapicr,  143 
U.  S.  1 10  (;]<;  L.  ed.  1)3,  12  Sup.  Ct.  Hep.  374) ;  Ex  parte  Jack- 
son, !)(;  U.  S.  727  (24  L.  ed.  y77). 

In  the  latter  case,  Mr.  Justice  Field,  delivering  the  unani- 
mous opinion  of  the  court,  said:  "But  we  do  u(tt  think  that 
Congress  possesses  the  ])ower  to  prevent  the  transportation  in 
other  ways,  as  merchandise,  of  matter  which  it  excludes  from 
the  mails.  To  give  etHciency  to  its  regulations  and  ])ievent 
rival  postal  systems,  it  nuiy,  perhaps,  prohibit  the  carriage  by 
others  for  hire,  over  postal  routes,  of  articles  which  legitimately 
constitute  nuul  nnitter,  in  the  sense  in  which  those  terms  were 
used  when  the  Constitutiim  was  adopted,  consisting  (d  letters, 
and  of  newspapers  and  pami)hlets,  when  not  sent  as  merchan- 
dise; but  further  than  this  its  power  of  prohibition  cannot  ex- 
tend."   And  this  was  rejjeated  in  the  Case  of  Rapier. 

Certainly  the  act  before  us  cannot  stand  the  test  of  the  rule 
laid  down  by  Mr.  Justice  Miller  in  the  Trculc-Marh  Cases,  100 


1 

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586 


AMERICAN  CRIMINAL  REPORTS. 


U.  S.  82,  9C  (United  States  v.  Steffens,  25  L.  ed.  552),  when 
lie  said:  "When,  therefore,  Congress  undertakes  to  enact  a  law, 
which  can  only  be  valid  as  a  regulation  of  commerce,  it  is  reason- 
able to  expect  to  find  on  the  face  of  the  law,  or  from  its  essen- 
tial nature,  that  it  is  a  regulation  of  commerce  with  foreign 
nations,  or  among  the  several  States,  or  with  the  Indian  tribes. 
If  not  so  limited,  it  is  in  excess  of  the  power  of  Congress." 

But  apart  from  the  question  of  bona  fides,  this  act  cannot 
be  brought  Avithin  the  power  to  regulate  commerce  among  the 
several  States,  unless  lottery  tickets  are  articles  of  connnerce, 
and,  therefore,  when  carried  across  State  lines,  of  interstate 
commerce;  or  unless  the  power  to  regulate  interstate  commerce 
includes  the  absolute  and  exclusive  power  to  prohibit  the  trans- 
portation of  anything  or  anybody  from  one  State  to  another. 

j\Ir.  Justice  Catron  remarked  in  the  License  Cases  [5  How. 
504,  GOO,  12  L.  ed.  256,  299]  that  "that  which  does  not  belong 
to  connnerce  is  within  the  jurisdiction  of  the  police  i>ower  of 
the  State;  and  that  which  does  belong  to  connnerce  is  within 
the  jurisdiction  of  the  United  States;"  and  the  observation  has 
since  been  vepent(dly  quoted  by  this  court  with  ap])roval. 

In  UnlU'd  Sl(t{es\\  E.  C.  Knight  Co.  156  U.  S.  1,  13  (39 
L.  ed.  329,  15  Sup.  Ct.  Rep.  254),  we  said:  "It  is  vital  that  the 
independence  of  the  commercial  power  and  of  the  police  power, 
and  the  delimitation  between  them,  however  sometimes  per- 
plexing should  always  be  recognized  and  observed,  for  while 
the  one  furnishes  the  strongest  bond  of  uni(m,  the  other  is  es- 
sential to  the  ])reservation  of  the  autonomy  of  the  States  as  re- 
quired by  our  dual  form  of  government ;  and  acknowledged  evils, 
however  grave  and  urgent  they  may  appear  to  be,  had  belter  l)0 
borne  than  the  risk  be  run,  in  the  effort  to  suppress  them,  of 
more  serious  consequences  by  resort  to  expedients  of  iven  duubt- 
ful  constitut  ionality.  It  will  be  perceived  how  far  reaching  the 
proposition  is  that  the  power  of  dealing  with  a  monopoly  directly 
may  be  exercised  by  the  general  Government  whenever  interstate 
or  international  commerce  may  be  ultimately  affected.  The 
regulation  of  commerce  applies  to  the  subjects  of  commerce,  and 
not  to  matters  of  internal  police."  This  case  was  adhered  to  in 
Addyston  Pipe  d-  Steel  Co.  v.  United  States,  175  U.  S.  211  (44 
L.  ed.  136,  20  Sup.  Ct.  Rep.  96),  where  it  was  decided  that 
Congress  could  prohibit  the  performance  of  contracts,  whose 


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t  cannot 
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■whose 


LOTTERY  CASE. 


88f 


natural  effect,  when  carried  out,  would  be  to  directly  rctnilato 
interstate  and  foreign  commerce. 

It  cannot  be  successfully  contended  tliat  either  Congress  or  tho 
States  can,  by  their  own  legislation,  enlarge  their  ])ow(  rs,  and 
the  question  of  the  extent  and  limit  of  the  powers  of  either  is  a 
judicial  question  under  the  fundnuiental.law. 

If  a  particular  article  is  not  the  subject  of  commerce,  the  de- 
termination of  Congress  that  it  is,  cannot  be  so  conclusive  as  to 
exclude  judicial  inquiry. 

AVlien  Chief  Justice  Marshall  said  that  commerce  cnil)raccd 
intercourse,  he  added,  commercial  intercourse,  and  this  was  ne- 
cessarily so  since,  as  Chief  Justice  Taney  pointed  out,  if  inter- 
course were  a  word  of  larger  meaning  than  the  word  "com- 
merce," it  could  not  be  substituted  for  the  word  of  more  limited 
meaning  contained  in  the  Constitution. 

Is  the  carriage  of  lottery  tickets  from  one  State  to  another 
commercial  intercourse  ? 

The  lottery  ticket  purports  to  create  contractual  relations,  and 
to  furnish  the  means  of  enforcing  a  contract  right. 

This  is  true  of  insurance  policies,  and  both  are  contingent  in 
their  nature.  Yet  this  court  has  held  that  the  issuing  of  fire, 
marine,  and  life  insurance  policies,  in  one  State,  and  sending 
them  to  another,  to  be  there  delivered  to  the  insured  on  p;i\nient 
of  premium,  is  not  interstate  commerce.  Paul  v.  Virginia,  8 
Wall.  168  (19  L.  ed.  357);  Hooper  v.  California,  155  U.  S. 
64S  (39  L.  ed.  297,  5  Inters.  Com.  Rep.  010,  15  Sup.  Ct.  Rep. 
207) ;  New  York  L.  Ins.  Co.  v.  Cravens,  178  U.  S.  389  (44  L. 
ed.  1,  110,  20  Sup.  Ct.  Rep.  902). 

In  Paul  V.  Virginia,  Mr.  Justice  Field  in  delivering  the 
unanimous  opinion  of  the  court,  said:  "Issuing  a  policy  of  in- 
surance is  not  a  transaction  of  commerce.  Tho  policies  are 
simple  contracts  of  indemnity  against  loss  by  fire,  entered  into 
between  the  corjxirations  and  the  assured,  for  a  consideration 
paid  by  the  latter.  These  contracts  are  not  articles  of  conunereo 
in  any  projior  meaning  of  the  word.  They  are  not  subjects  of 
trade  and  barter  offered  in  the  market  as  something  having  an 
existence  and  value  independent  of  the  parties  to  them.  They 
are  not  commodities  to  bo  shijiped  or  forwarded  from  one  State 
to  another,  and  then  put  up  for  sale.  They  are  like  other  per- 
sonal contracts  between  parties  which  are  completed  by  their 
signature  and  the  transfer  of  the  consideration.     Such  con- 


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588 


AMERICAN  CRIMINAL  REPORTS. 


tracts  are  not  interstate  transactions,  though  the  parties  may  be 
domiciled  in  dilTcrent  States.  The  policies  do  not  take  effect 
— are  not  executed  contracts — until  delivered  by  the  agent  in 
Virginia.  They  are,  then,  local  transactions,  and  are  governed 
by  the  local  law.  They  do  not  constitute  a  part  of  the  com- 
merce bt^tween  the  States  aiiv  more  than  a  contract  for  the  pur- 
chase and  sale  of  goods  in  Virginia  by  a  citizen  of  New  York 
whilst  in  Virginia  would  constitute  a  portion  of  such  com- 
merce." 

This  language  was  quoted  with  approval  in  Hooper  v.  Cali- 
fornia, 155  U.  S.  048,  and  it  was  further  said:  ''If  the  power 
to  regulate  interstate  commerce  ap])lied  to  all  the  incidents  to 
which  said  conniierce  might  give  rise,  and  to  all  contracts  which 
might  Ije  made  in  the  course  of  its  transaction,  that  power  would 
embrace  the  entire  sphere  of  mercantile  activity  in  any  way  con- 
nected with  trade  between  the  States;  and  would  exclude  State 
control  over  many  contracts  ])»irely  domestic  in  their  nature. 
The  business  of  insurance  is  not  commerce.  A  contract  of  in- 
surance is  not  an  instrumentality  of  comuifrce.  The  making  of 
such  a  contract  is  a  mere  incident  of  conunercial  intercourse,  and 
in  til  is  res[)ect  there  is  no  ditference  whatever  between  insurance 
agaiiisi  tire  and  insurance  against  'the  perils  of  the  sea.'  "  Or, 
qs  remarked  in  ^ew  York  L.  Ins.  Co.  v.  Cravens,  178  LT.  S.  389 
"against  the  uncertainty  of  man's  mortality." 

The  fact  that  the  agent  of  the  foreign  insurance  company  ne- 
gotiated the  contract  of  insurance  in  the  State  Avhere  the  con- 
tract was  to  be  tinally  completed  and  the  policy  delivere(l,  did 
ncit  affect  the  result.  As  ^Ir.  Justice  Bradley  said  in  the  lead- 
ing case  of  Rabbins  v.  Shelby  Count ij  Taxing  Did.  120  II.  S. 
481)  (;;o  L.  ed.  (594,  1  Inters.  Com.  Hep.  45,  7  Su]).  Ct.  Kep. 
592) :  "The  negotiation  of  sales  of  goftds  which  are  in  another 
State,  for  the  purjwse  of  introducing  them  into  the  State  in 
which  the  negotiation  is  made,  is  inlerstate  connnerce."  And 
see  Collins  v.  New  IIami>shire,  171  U.  S.  30  (43  L.  ed.  GO,  18 
Sup.  Ct.  Rep.  708),  and  other  cases. 

T(  st(Ml  by  the  same  reasoning,  negotiable  instruments  are  not 
instruments  of  commerce  ;  bills  of  lading  are,  because  they  stand 
for  the  articles  included  therein;  hence  it  has  been  held  that  a 
State  cannot  tax  in'erstate  bills  of  lading  bi'cause  that  woidd  \)o 
a  regulation  of  interstate  commerce,  and  that  (Amgres?^  can- 
not    tax     foreign     bills     of    lading,    because    that    would    bo 


LOTTERY  CASE. 


589 


to  tax  the  articles  exported,  and  in  conflict  with  article  1,  S  l>, 
cl.  5,  of  the  Constitution  of  the  United  States,  that  *'no  tax  or 
duty  shall  Ix'  laid  on  any  articles  exported  from  any  State." 
FalrhoHl-s  v.  United  Slates,  181  U.  S.  283  (45  L.  ed".  862;  21 
Sup.  Ct.  Kep.  048). 

In  Nathan  v.  Louisiana,  8  ITow  73  (12  L.  cd.  9!)3),  it  was 
held  that  a  broker  dealing  in  foreip^n  bills  of  exchange  was  not 
eupa/^ed  in  conunerco,  but  in  supplying  an  instrumentality  of 
connnerce,  and  that  a  State  tax  du  all  monev  or  ex{'liini'''o 
brukcrs  was  not  void  as  to  him  as  a  regulation  of  connnerce. 

And  in  Williams  v.  Fears,  179  U.  S.  270  (45  L.  ed.  ISi;,  21 
Sup.  Ct.  Kep.  128),  that  the  levy  of  a  tax  by  the  State  of  (leor- 
gia  on  the  occupation  of  a  person  engaged  in  hiring  laborers  to 
Ik'  employed  beyond  the  limits  of  the  State  was  not  a  reunlntion 
of  interstate  connnerce,  and  that  the  tax  fell  within  the  distinc- 
tion l)etween  interstate  connnerce  or  an  instrumentality  thereof, 
and  the  mere  incidents  that  might  attend  the  carrying  on  of  such 
connnerce. 

In  Cohen  v.  Virginia,  0  Wheat.  2(i4,  440  (5  L.  ed.  257,  2i)0), 
Congress  has  empowered  the  corporation  of  the  city  of  Washing- 
ton to  ''authorize  the  drawing  of  lotteries  for  any  improvement 
of  the  city,  which  the  ordinary  f  imds  or  revenue  thereof  will  not 
accom])lish."  The  corporation  had  duly  provided  for  such  lot- 
tery, and  this  case  was  a  conviction  under  a  statute  of  Virginia 
for  selling  tickets  issued  by  that  lottery.  That  statute  forbiide 
the  sale  within  the  State  of  any  ticket  in  a  lottery  not  authorized 
by  the  laws  of  Virginia. 

The  court  held,  by  Chief  Justice  ^larshall,  that  the  lottery 
was  merely  the  ennination  of  a  corporate  power,  and  "that  the 
mind  of  Congress  was  not  directed  to  any  provision  for  the  sale 
of  the  tickets  iK'yond  the  limits  of  the  corporation." 

The  constitutionality  of  the  act  of  Congress,  as  forcing  the 
sale  of  tickets  in  Virginia,  was  therefore  not  i)assed  on,  but  if 
lottery  tickets  bad  been  deemed  articles  of  commerce,  the  \'ir- 
ginia  statute  would  have  been  invalid  as  a  regulation  of  com- 
merce, and  the  conviction  could  hardly  have  been  affirmed,  as  it 
was. 

In  Nutting  v.  Ma-ssachusetls,  183  U.  S.  553,  550  (40  L.  ed. 
324,  325.  22  Sup.  Ct.  Kep.  238,  23!)),  .Mr.  Justice  Gray  said: 
"A  state  has  the  undoubted  power  to  prohibit  foreign  insurance 
companies  from  making  contracts  of  insurance,  marine  or  other. 


B 


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590 


AMERICAN  CRIMINAL  REPORTS. 


within  its  limits,  except  upon  such  conditions  as  the  State  may 
prescribe  not  interfering  with  interstate  conunerce.  A 
contract  of  marine  insurance  is  not  an  instrumentality  of 
eonnnerce  but  a  mere  incident  of  commercial  int-ercourse. 
The  State,  having  the  power  to  impose  conditions  on  the 
transaction  of  business  by  foreign  insurance  companies  with- 
in its  limits,  has  the  e<iual  right  to  prohibit  the  transaction  of 
such  business  by  agents  of  such  companies,  or  by  insurance 
brokers,  who  are  to  some  extent  the  representatives  of  both 
parties." 

If  a  State  should  create  a  corporation  to  engage  in  the  busi- 
ness of  lotteries,  eouhl  it  enter  another  State,  which  prohibited 
lotteries,  on  the  ground  that  lottery  tickets  were  the  subject  of 
commerce  'i 

On  the  other  hand,  could  (\)ngress  compel  a  State  to  admit 
lottery  matter  within  it,  contrary  to  its  own  laws  i 

In  A  l<:v(indt'r  v.  Htafc,  80  Ga.  24(5  (10  L.  U.  A.  859,  S.  E. 
40s),  it  was  held  that  a  State  Statute  prohibiting  the  business 
of  buying  and  selling  what  are  connnonly  known  as  "futures," 
was  n(»t  j)r()tccted  by  the  commerce  clause  of  the  Constitution, 
as  the  business  was  gambling,  and  that  clause  protected  inter- 
state commerce  but  did  not  protect  interstate  gambling.  The 
same  view  was  expressed  in  iSlate  r.  ISlripllitcj,  113  Ala.  120 
(3(5  L.  K.  A.  81,  21  So.  409),  in  respect  to  an  act  forbidding  the 
sale  of  I'-jols  on  horse  races  conducted  without  the  State. 

In  Biillocic  V.  Slate,  V.l  Md.  1  (S  L.  R.  A.  071,  20  Atl.  184), 
it  was  held  that  when  the  bonds  of  a  foreign  government  are 
couj)le(l  with  conditions  and  stipidations  that  change  their  char- 
acter from  an  obligation  for  the  j)aynient  of  a  exn'tain  sum  of 
money  to  a  species  of  lottery  tickets  condenmed  by  the  ])olice 
reguliitions  of  the  State,  the  prohibition  of  their  sale  did  not 
vio.ate  treaty  stipulation  <»r  constitutional  provision.  Such  bonds 
with  such  conditions  and  stipulat/ions  ceased  to  be  vendible  un- 
der the  law. 

So  lottery  tickets  forbidden  tol>e  issued  or  dealt  in  by  the  laws 
of  Texas,  the  terminus  a  quo,  and  by  the  laws  of  California  or 
Utah,  the  ienauius  ad  quern,  were  not  vendible;  and  for  this 
reason,  also,  not  articles  of  eonnnerce. 

If  a  lottery  ticket  is  not  an  article  of  commerce,  how  can  it 
become  so  when  placed  in  an  envelope  or  box  or  other  covering, 
and  transported  by  an  express  conipany  ?    To  say  that  the  mere 


LOTTERY  CASE. 


591 


carrying  of  an  article  which  is  not  an  article  of  commerce  in 
and  of  itself  nevertheless  becomes  such  the  moment  it  is  to  be 
transported  from  one  State  to  another,  is  to  transform,  a  non- 
connnercial  article  into  a  commercial  one  simi)ly  because  it  is 
transported.  I  cannot  conceive  that  any  such  result  can  pro]>- 
crly  follow. 

It  would  be  to  say  that  everything  is  an  article  of  connuerce 
the  moment  it  is  taken  to  be  transported  from  i)hice  to  place, 
and  of  interstate  commerce  if  from  State  to  State. 

An  invitation  to  dine,  or  to  take  a  drive,  or  a  note  of  intro- 
duction, all  become  articles  of  commerce  under  the  ruliiiji'  in 
this  case,  by  being  deposited  with  an  e.\  ress  company  tor  trans- 
portation. This  in  eti'ect  breaks  down  all  the  ditt'erencc!?  be- 
tween that  which  is,  and  that  which  is  not,  an  art!(;le  of  com- 
merce, and  the  necessary  consequence  is  to  take  frcm  the  States 
all  jurisdictitm  over  the  subject  so  far  as  interstatx3  conuuuni- 
cation  is  concerned.  It  is  a  long  step  in  the  direction  of  wiping 
out  all  traces  of  State  lines,  and  the  creation  of  a  centralized 
government. 

Does  the  gTant  to  Congress  of  the  power  to  regulate  inter- 
state commerce  impart  the  absolute  power  to  prohibit  it  'i 

It  was  said  in  Uibboiis  v.  Ogdcn,  U  Wheat.  1,  211,  that  the 
right  «»f  iiittreourse  between  State  and  State  was  derived  from 
"those  hnvs  whose  authority  is  acknowledged  by  civilized  man 
throughout  the  world ;"  Init  mider  the  Articles  of  (^mfederation 
the  States  might  have  interdicted  interstate  trade,  yet  when 
they  surrender  d  tbe  power  to  deal  with  coimiieree  as  between 
themselves  to  the  general  government  it  was  xnidoubtedly  in  or- 
der to  form  a  more  ]ierfeet  union  by  freeing  sr.ch  commerce 
from  State  discrimination,  and  not  to  transfer  the  power  of  re- 
striction. 

"T)Ut  if  that  ])ower  of  regulati<m  is  absolutely  unrestricted  as 
respects  interstate  commerce,  then  the  very  unity  the  Constitu- 
tion was  framed  to  secure  can  l)e  set  at  naught  by  a  legislative 
body  created  by  that  ijistrument."  Doolcy  v.  U.  S.,  18iJ  U.  S. 
151,  171  (4(t  L.  ed.  VM\  22  Suj).  Ct.  liep.  70). 

It  will  not  do  to  say — a  suggestion  which  has  heretofore  been 
made  in  this  case — that  State  laws  have  been  fcmnd  to  be  inef- 
fective for  the  suppression  of  lotteries,  and  therefoi'e  Congress 
should  interfere.     The  scope  of  the  connuerce  clause  of  the  Con- 


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AMERICAN  CRIMINAL  REPORTS. 


stitntion  ciiiinot  be  enlarged  because  of  present  views  of  public 
interest. 

In  (Miiiulrics  whose  fundamental  law  is  flexible  it  may  be  that 
the  htinielv  maxim,  "to  case  the  shoe  where  it  pinches,"  may  be 
applied,  l)Ut  under  the  Constitution  of  the  United  States  it  can- 
not be  availed  of  to  justify  action  by  Congress  or  by  the  courts. 

Th(>  Constitution  gives  no  countenance  to  the  theory  that 
Congiess  i.-'  vested  with  the  full  powers  of  the  JJritisli  Parlia- 
ment, and  that,  althougli  subject  to  constitutional  limitations, 
it  is  th(!  sob'  judg(!  of  their  extent  antl  aj)j)lication ;  and  the  de- 
cisions of  this  court  from  the  beginning  have  been  to  the  con- 
trary. 

"To  wliat  purpose  are  powers  limited,  and  to  wliat  purpose  is 
that  limitation  committed  to  writing,  if  these  limits  nniy,  at  any 
time,  I)e  j)assed  by  those  intended  to  1h'  restrained  f  asked  Mar- 
shall, in  Maxhunj  v.  Madison  [1  Cranch,  170,  2  L.  ed.  7!J J. 

''Shouhl  Congress,''  said  the  same  great  magistrate  in  M'Cul- 
loch  V.  Mdri/laiul,  -t  Wheat.  .'{Ki,  42.'}  "under  the  pretext  of  ex- 
ecuting its  powers,  pass  laws  for  the  accomjtlishment  of  (ibjeets 
not  intrusted  to  the  Government,  it  would  become  the  ])ainful 
duty  of  this  triliunal,  shouhl  a  case  requiring  such  a  <lecision 
come  before  it,  to  say  that  such  an  act  was  not  the  law  of  the 
land." 

And  so  Cliief  Justice  Taney,  referring  to  the  extent  and 
limits  of  tlie  powers  of  Congress:  "As  the  Constitution  itself 
does  not  draw  the  line,  the  question  is  necessarily  one  for  judi- 
cial decision,  and  depending  altogether  ujion  the  words  of  the 
Constitution."     [License  Cases,  5  How.  i'uA,  12  L.  ed.  2SS.] 

It  is  argued  that  the  power  to  regulate  commerce  among  the 
several  States  is  the  same  as  the  power  to  regulate  conmierce 
with  foreign  nations,  and  with  the  Indian  tribes.  But  is  its 
scope  the  same  i 

As  in  eifeet  lieforc  observed,  the  power  to  regidatc  commerce 
with  foreign  muions  and  the  power  to  regulate  iViterstate  com- 
merce, are  to  be  taken  diverso  intuitu,  for  the  latter  was  intend- 
ed to  secure  ecpinlity  and  freedom  in  commercial  intercourse  as 
between  the  States,  not  to  pernnt  the  creation  of  impediments  to 
such  intercourse;  wliile  the  former  clothed  Congress  with  that 
power  over  international  commerce,  pertaining  to  a  sovereign 
nation  in  its  intercourse  with  foreign  nations,  and  subject,  gen- 
erally speaking,  to  no  implied  or  reserved  power  in  the  States. 


LOTTERY  CASE. 


593 


of  public 

>.y  1)0  tliiit 
"  may  he 
es  it  t'ii li- 
lt' C'OUl'tH. 

I'ory  tlint 
h  I'arlia- 
iiitatioiis, 

(1    flic    (1(- 

tlie  (.'011- 

urpnso  is 
y,  at:  any 
K('<1  Mar- 

7;{|. 

1  M'CuI- 
xt  of  cx- 
f  <)bj('('t8 
I)a  infill 
<loeision 
w  of  tlic 

cat  and 

m  itself 
'or  jiidi- 
d  of  tlio 
1.  2,ss.  1 
ioii<>'  the 

It  is  its 

inmci'ce 
te  c'om- 
intend- 
nrse  as 
icnts  to 
th  that 
'c  reign 
-t,  gen- 
States. 


The  kws  which  would  be  necessary  and  proper  in  the  one  case 
would  not  bo  necessary  or  proper  in  the  other. 

Congress  is  forbidden  to  lay  any  tax  or  duty  on  articles  ex- 
ported from  any  State,  and  while  that  has  been  applied  to  ex- 
ports to  a  foreign  country,  it  seems  to  nie  tliiU  it  was  ])laiiily  in- 
tended to  ai)ply  to  interstate  exportation  as  well;  Congress  is 
fcjrbidden  to  give  preference  by  any  regulation  of  conmierce  or 
revenue  to  the  ports  of  one  State  over  those  of  another;  and 
duties,  imposts,  and  excises  must  bo  uniform  throughout  tho 
United  States. 

"The  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States."  This  clause 
of  the  2d  section  of  article  4  was  taken  from  the  4th  article 
of  Confederation  which  provided  that  "the  free  inhabitant  of 
each  of  these  States  .  .  .  shall  be  entitled  to  all  privileges 
and  immunities  of  free  citizens  in  the  several  States;  and  the 
people  of  each  State  shall  have  free  ingress  and  regress  to  and 
from  any  other  State,  and  shall  enjoy  therein  all  the  privileges 
of  trade  and  commerce;"  while  other  parts  of  the  same  avtic^.e 
were  also  brought  forward  in  article  4  of  the  Constitution. 

Mr.  Justice  Miller,  in  the  Slaughtcr-Ilouse  Cases,  IG  Wall. 
36,  75  (21  L.  ed.  31)4,  40S),  says  that  there  can  be  but  little 
question  that  the  purjKise  of  the  4th  article  of  the  Confedera- 
tion, and  of  this  particular  clause  of  the  Constitution,  "is  the 
same,  and  that  the  privileges  and  immunities  intended  arc  the 
same  in  each." 

Thus  it  is  seen  that  the  right  of  passage  of  persons  and  prop- 
erty from  one  State  to  another  cannot  l)e  prohibited  by  Congress. 
But  that  does  not  challenge  the  legislative  power  of  a  sovereign 
nation  to  exclude  foreign  persons  or  commodities,  or  place  an 
embargo,  perhaps  not  permanent,  upon  foreign  ships  or  manu- 
factures. 

The  power  to  prohibit  tl'.e  transportation  of  diseased  animals 
and  infected  goods  over  railroads  or  on  steamboats  is  an  entirely 
different  thing,  for  they  would  be  in  themselves  injurious  to 
the  transaction  of  interstate  commerce,  and,  moreover,  are  es- 
sentially commercial  in  their  nature.  And  the  exclusion  of 
diseased  persons  rests  on  different  gromid,  for  nobody  would 
pretend  that  persons  ccnild  be  kept  off  the  trains  because  they 
were  going  from  one  State  to  another  to  engage  in  the  lottery 
business.     However,  enticing  that  business  may  be,  we  do  not 

Vol.  XIII— 38 


I     :   t 


M 


I 


I  ,  :     I 


I 


filifii 


f 


ill: 


k  'I: 


I  ■  ;i 


m- 


(■■I  ■ 


'I 


594 


AMERICAN  CRIMINAL  REPORTS. 


nndorstnnd  these  pieces  of  paper  themselves  can  coinmuniciito 
had  priiu'ipU's  h_y  eoiitaet. 

The  siiiiic  view  iim^t  he  taken  as  to  eonimoree  with  Tiidiaii 
ti'ihcs.  I'licre  is  no  resi  rvatinn  of  jjoliec  powers  or  any  otli"r 
to  a  foreign  nation  or  to  an  Indian  trilM",  and  the  scope  of  tlit; 
power   is   not    the   same   as    that   over    interstate   conunerce. 

In  CiiUrd  Sidles  r.  Jfl  (Jallons  of  Wliiskry,  l);{  IJ.  S.  1>SS, 
li>4  {I'liKrd  Sidles  r.  Lnrlv'ivtr,  2;J  L.  e(L  M({,  847),  Mr. 
.Justice  Davis  said:  ''Congress  now  has  (he  exchisive  and  ahso- 
hite  power  to  regnlate  coiiinierce  witli  the  Iiniian  trihes, — a 
power  i:s  liroad  and  free  from  restrictions  as  that  to  reiiidate 
coiiiiiierce  with  ionign  nations.  'J'lu'  oiilv  eilicient  wjiy  of  (h-ai- 
inji'  with  the  Indian  trihes  was  to  ])hice  tluMU  nnch'r  the  protec- 
tion of  the  general  (iovernment.  Their  pecnliar  haltits  and 
character  reipiired  this;  and  the  historv  of  the  coi.!:  ry  sliows 
llio  necessity  of  keeping;'  them  'separate,  suhordinate,  and  (h'- 
l)en(hnt.'  Accord innly,  trciities  have  heen  nunh;  and  hiws  ])asse(l 
separating;'  Indian  territory  from  tliat  (»f  the  States,  and  ])ro- 
vidinj;  that  intereonrse  and  tra(h,'  with  tlie  Indians  sliouid  he 
carried  (m  sohly  nnder  tl;e  anthority  of  tlie  United  States." 

1  reii'ard  this  decision  as  inconsistent  with  the  views  of  the 
framers  of  the  Constitntioii,  and  of  .Mar-liall,  its  great  e.\|)onnd- 
er.  Onr  form  of  (loveriunent  iiuiy  rt-main  notwitlistanding 
k^gis'ation  or  decision,  hut,  as  long  ago  ohserved,  it  is  with  gov- 
ernment, as  with  religions:  the  form  may  siirvi\'  th(  suhstance 
of  the  faith. 

In  my  opinion  the  act  in  (piestioe  '  ,Kirticnlar  nnder  con- 

sideration is  invalid,  and  the  jncL  ~  hehiw  ong'      to  he  re- 

versed, and  my  hrothers  BkkwkUj  fc.  has  and  Peckuam  coucnr 
in  thi"  di:;sent. 


^1 


\  \. 


-ji 


I  !  II 


FRAN'CIS  ET  AL.  v.  UNITED  STATES.  595 

FiiANcis  irr  AT-.  V.  Tmtki)  Statks. 
188  U.  S.  375—47  Law  Ed.  508—23  Sup.  Ct  Roi).  334. 
DoPldod  February  23,  1903. 
LoTTKUv:     I'olliy  slips,  not  lottery  lUkets, 

1.  A  i)olicy  slip,  wrltlon  by  a  ciiKtomor  and  deposited  with  the  lot- 

tery agent,  by  hliii  to  be  cairlcd,  iiud  In  fact  was  so  carried,  to  the 
prliiclpiil  onico  1q  annlhor  State,  Is  not  a  ticket  in  contemplation 
of  the  atatutu  forbidding  the  tranamisaion  of  lottery  tickets  from 
State  to  State. 

2.  Qiicro— If  Huch  iiolicy  alip  was  a  ticket  in  the  contenii.latlon  of  the 

Htatuto,  v/ould  tiie  carrying  of  the  name  by  the  agent  of  the  lot- 
tery conipiiny  bo  Interatato  coiunicrce? 

Siipi'cJiio  Court  ftf  the  United  States, — Certiorari,  to  tlio 
Circuit  Court  of  Aiipcnls  for  tlio  Sixth  District. 

.lohii  Fruiici'),  Antiioiiy  llolf,  aiul  -Jolm  Ivlgar  were  tried  and 
(•(iiivictcd  in  the  District  Couil  of  the  Tnitcd  States  for  tlio 
.Sdutlicrn  District  of  Ohio  on  iiulietuient  ehargiug-  them  with  a 
c(iMs|»iraey  to  conmiit  a  crime,  in  viohition  of  Section  .'ii-tO  []. 
S.  U.  S.  The  conviction  was  allirmed  by  the  Circuit  Court  of 
Appeals,  and  then  tid;(  ii  upon  (.'crfiordri  to  tlio  Supreme  Court 
nj!  the  I'liitcMl  Stales.  It  was  arnued,  in  conjunction  with 
('li(iiiii>ioii  V.  Ames  (Lollcrij  L'(m'),  1S!S  V.  S.  \V1\,  on  Oct.  ICth 
and  JTtli   1001,  and  re-argned  Dec.   l.'ith,  1002.     Kevcrsed. 

(Ironjc  F.  Edmunds,  John  U.  Carlisle,  and  Thomas  F.  Shay, 
for  the  petitionor.s. 

Assislaiit  AUoniey  (Icncral  Bcrl-,  for  the  respondents. 


Mr.  -lustice  ]Ic)I,mi.s  delivered  the  opinion  of  the  court: 
This  is  an  indictment  un<ler  Kev.  Stat.  I?  5440  (U.  8. 
Comp.  Stat.  1!)()1,  p.  oIlTfi),  for  conspiring  to  commit  an  of- 
fense against  the  United  States.  The  offense  which  the  de- 
femhints  are  alleged  to  have  conspired  to  conunit  and  to  have 
committed  is  that  of  causing  to  he  carried  from  one  State  to 
another,  riz.,  from  Kentucky  to  Ohio,  five  papers,  certificates, 
and  instruments,  jjurporting  to  be  and  to  represent  chances, 
shares,  and  interests  in  tl:c  jirizes  thereafter  to  Ik?  awarded  by 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


.  i 


^ 


t; 


III 


./ 


1       ■    i  ' 


ii';' 


II 


liji 


:,.  t 

h'  i!' 


!|ij|. 


i 


I 


rem 


596 


AMERICAN  CRIMINAL  REPORTS. 


i  <\ 


hjS 


lilt  in  the  drawings  of  a  lottery,  commonly  known  as  the  game 
of  policy.  Act  of  [March  2,  1895,  chap.'  191  (28  Stat,  at  L. 
903,  U.  S.  Comp.  Stat.  1901,  p.  3178).  It  appears  that  the 
Inttery  in  question  lunl  its  headquarters  in  Ohio  and  agencii's 
in  diflferent  States.  A  purchaser,  or  jierson  wishing  to  take 
a  chance,  went  to  one  of  these  agencies,  in  this  case  in  Ken- 
tucky, selected  three  or  more  ninubers,  wrote  them  on  a  slip, 
and  handed  the  slip  to  the  agent,  in  this  case  to  the  defendant 
Iloif,  paying  the  price  of  the  chance,  at  the  same  time,  and 
keeping  a  duplicate,  which  was  the  purchaser's  voucher  for  his 
selection.  The  slip  in  this  case  was  taken  by  the  defendant 
Edgar  to  be  carried  to  the  principal  othce,  where  afterwards, 
in  the  regular  course,  there  would  be  a  drawing  by  the  defend- 
ant Francis.  If  the  purchaser's  numlK-r  shouhl  Avin,  the 
prize  would  be  sent  to  the  agency  and  paid  over.  The  car- 
riage from  one  State  to  another,  relied  upon  as  the  object  <if 
the  conspiracy,  and  as  the  overt  act  in  pursuance  of  the  con- 
spiracy, was  the  carriage  by  Edgar  of  slips  delivered  to  Ilotl", 
as  above  described.  The  case  was  sent  to  the  jury  by  the 
District  Court,  the  defendants  were  found  guilty,  and  the 
judgment  against  them  was  affirmed  by  the  Circuit  Court  of 
Appeals.  licilki/  v.  i'nUed  Stales,  4n'c\  C.  A.  2."),  10(5  Fed. 
89(3.     The  case  then  was  bi/Ught  here  on  certiorari. 

An  exceptiim  was  taken  at  every  step  of  the  trial  in  the  hope 


that  some  shot  might  hit  the  mark. 


We  entirely  agree 


with 


the  Circuit  Court  of  Appeals  in  its  unfavorable  comments  on 
the  practice.  But,  little  attention  as  most  of  the  objections 
made  deserve,  they  at  least  succeedtMl  in  raising  tlie  broatl  (pn'S- 
tions  whether  the  act  of  1895  is  coiir-titutional,  and  whether  the 
offense  proved  is  within  it.  Tiie  former  is  dis])osed  of  by  the 
case  of  Champion  v.  A)nes,  188  U.  S.  ante,  321,  23  Sup.  Ct. 
Kep.  321.  The  latter  remains,  and  thus  far  seems  to  us  not  to 
have  received  quite  sutKcient  notice. 

The  game  was  played  by  mixing  seventy-eight  consecutive 
numbers  and  drawing  out  twelve  after  all  the  i)urchases  for  the 
game  had  been  reported.  If  the  three  on  any  slip  corresponded 
in  nund)er  and  order  with  three  drawn  out,  the  ])urchaser  won. 
The  purpose  of  bringing  in  the  slips  to  headquarters  Avas  that  all 
purchases  should  be  known  there  before  the  drawing,  and  thus 
swindling  by  agents  of  the  lottery  made  impossible.  It  is  said 
by  the  Circuit  Court  of  Appeals  that  the  successful  slips  were 


the  game 

at.  at   L. 
i  that  tlic 

agenc'iis 
?  to  take 

in  Kon- 
n  u  slip, 

cfoiKhiiit 
imc,  and 
r  for  liis 
('fondant 
terwards, 
dofond- 
iVin,  the 
The  car- 
ohjot't  of 

the  eon- 

to  Iloti; 
l)y   tlic 

and   the 
Conrt  of 

0(5  l<\-d. 

the  hopo 
TPc  with 
ncnts  on 
hjoctions 
)ad  (pics- 
't\wY  tlio 
f  l)y  the 
Sup.  Ct. 
IS  not  to 

isocntivo 
i  for  tho 
si)on(k'd 
^cr  Avon. 
I  that  all 
ind  thus 
:;  is  saiil 
ps  were 


'if; 


FRANCIS  ET  AL.  v.  UNITED  STATES. 


697 


returned  with  the  prizes.  If  this  is  correct  we  do  not  per- 
fcive  that  it  materially  att'eets  the  case.  The  arrange- 
iiieut,  whatever  it  Avas,  Avas  for  the  convenience  and 
safety  of  those  Avho  managed  this  lottery,  and  Aviis 
in  no  Avay  essential  to  the  interests  of  the  person 
making  the  purchase  or  bet.  The  daily  rcjjort  of  the  re- 
sult of  the  draAvings  to  llotf,  Avith  Avhoni  he  dealt,  and  the  for- 
Avarding  of  the  prize,  if  draAvn,  filled  all  his  needs.  It  Avould 
seem  from  the  evidence,  as  the  Government  contended, — cer- 
tainly the  contrary  does  not  appear  and  Avas  not  argued, —  that 
lloff  and  Edgar,  the  carrier,  Averc  agents  of  the  lottery  com- 
pany. Tiius  the  slips  Avere  at  home,  as  between  the  purchaser 
and  the  lottery,  Avhen  put  into  Iloif' s  hands.  They  had  reached 
their  final  destination  in  point  of  laAV,  and  their  later  move- 
ments AA-ere  internal  circulation  Avithin  the  sphere  of  the  lot- 
tery coiiii)any's  possession.  Therefore  tho  question  is  suggest- 
ed Avhether  the  carriage  of  a  paper  of  any  sort  by  its  owner  or 
the  owner's  servant,  ])roperly  so  called,  Avith  no  vicAV  of  a  later 
change  of  possession,  can  be  commerce,  even  Avhen  the  carriage 
is  in  aid  of  some  business  or  tralKc.  The  case  is  difTereut  from 
one  Avhero,  the  carriage  being  done  by  an  independent  carrier,  it 
is  commerce  men  Iv  bv  reason  of  the  business  of  carriage. 

The  (piestion  just  put  need  not  be  ansAvered  in  this  case.  For 
on  another  ground  Ave  are  of  opinion  that  there  Avas  no  evidence 
of  an  offense  Avithin  the  meaning  of  the  act  of  1895.  The  as- 
sumption has  been  that  the  slips  carried  from  Kentucky  to  Ohio 
Avere  papers  purporting  to  be  or  represent  a  ticket  or  interest  in 
a  lottery.  But  in  our  opinion  these  papers  did  not  purport  to 
lie  or  do  either.  A  ticket,  of  course,  is  a  thing  Avhich  is  tho 
holders  means  of  making  good  his  rights.  The  essence  of  it  is 
that  it  is  in  the  hands  of  the  other  party  to  the  contract  Avith 
the  lottery  as  a  document  of  title.  It  seems  to  us  quite  plain 
that  the  alternative  instrument  mentioned  by  the  statute,  viz., 
a  paper  rej)resenting  an  interest  in  a  lottery,  equally  is  a  docu- 
ment of  title  to  the  purchaser  and  holder, — the  thing  by  hold- 
ing Avhich  he  makes  good  his  right  to  a  chance  in  the  game, 
uut  the  slips  transported,  as  Ave  liaA'e  pointed  out,  Avcrc  not 
the  purchasL'rs'  documents.  It  is  true  that  they  corresponded 
in  contents,  and  so  in  one  sense  represented  or  depicted  the 
purchasers'  interests.  But  "represent"  in  the  statute  means, 
as  Ave  alrea<ly  liaA^e  said  in  other  Avords,  represent  to  the  pur- 
chaser.    It  means  stand  as  the  representatiA'o  of  title  to  the  in- 


1 

FTP 

1 

'  1 

1 

ml 

10 


'    1 


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!  '  I  * 


.'  ■'  i  : 


'  t 


t    :'f 


Ml 
■  ij 


i 


598 


AMERICAN  CRIMINAL  REPORTS. 


Nli 


dicatcd  thing,  and  that  those  slips  did  not  do.  The  function  of 
tlic  slijis  might  have  boon  perfornicd  by  descriptions  in  a  budk, 
01'  by  memory,  if  the  wliole  lottery  bnsine'=«  had  been  done  bv 
one  man.  They  as  little  repi'esented  the  purchaser's  cliaiucs 
as  the  f'tnbs  in  a  check  book  represent  the  sums  coming  to  ilw 
payees  of  the  checks. 

We  assume,  for  purposes  of  decision,  that  the  jiapers  kept  by 
the  purchasers  were  tickets,  or  did  repn  sent  an  interest  in  a 
lottery.  ]3ut  those  papers  did  not  leave  Kentuckv.  There  was 
no  conspiracy  that  tliey  should.  We  need  not  consider  whether, 
if  it  had  been  necessary  to  take  them  to  Ohio  in  order  to  se- 
cure the  purchaser's  rights,  the  lottery  keej)ers  cnidd  be  said  to 
conspire  to  cause  them  to  be  carried  there,  when  the  carriage 
Ai'ould  be  in  an  interest  adverse  to  theirs,  and  they  would  be 
better  oft"  and  presumi^My  glad  if  the  pajiers  never  were  pvr- 
sented.  See  Com.  v.  Pcaxicc,  177  ^Mass.  2(J7,  '11  \,  '){»  X.  E.  o,"); 
Grares  v.  Johnson,  17U  _Mass.  o.'],  itS,  (!()  X.  K.  ,'}S;3. 

Tlic  judijincfit  of  ihc  Circuit  Court  of  Appctils  is  reversed; 
the  jiidfjinent  of  the  District  Court  is  aiso  rrrcrsed;  aud  Ihc- 
cause  remanded  to  that  court,  with  directions  to  set  aside  the 
verdict  and  grant  a  new  trint. 

-Mr.  Justice  JIaim.an  dissenting: 

This  is  a  criminal  prosecution  based  upon  the  1st  section  of 
the  act  of  Congress  of  ^larch  lid,  lSi>."),  chap.  1!M,  entitled  "An 
Act  for  the  Snppression  of  Lottery  Traiiie  through  National  and 
Interstate  Commerce  and  the  i'dstal  Service,  Subject  t(j  the 
Jnrisdiction  and  Laws  of  the  United  States." 

That  section  reads:  ''jj  I.  That  any  person  who  shall  canse 
to  Ijc  brought  within  the  I'nited  Stales  from  abroad,  for  the 
purpose  of  disposing  of  the  same  or  dejiosited  in  or  carri(.'d  by 
the  nniils  of  the  Uintcnl  States,  or  carried  from  one  State  to  an- 
other in  the  United  States,  any  piiper,  eertitieate,  (»r  instru- 
ment ]»urporting  to  be  or  repres(>nt  a  ticket,  chance,  share,  <ir 
interest  in  uv  dependi'nt  u])on  tJie  event  of  a  lottery,  so-called 
gift  concert,  or  similar  enterpris(;  oii'ering  i)rizes  dependent 
upon  lot  or  chance,  or  shall  caus(^  any  advertiselSieut  ol  such 
lottery,  so-called  gift  concert,  or  similar  enterprises,  oii'ering 
prizes  dependent  upon  lot  or  chance,  to  Ix'  brought  into  the 
United  States,  or  deposited  in  or  carried  by  the  mails  of  the 
United  Stat(  s  or  transferred  from  one  State  to  another  in  the 
same,  shall  be  punishable  in  the  lirst  oft'euse  by  imprisonment 


FRANCIS  ET  AL.  v.  UNITED  STATES. 


599 


for  not  more  than  two  years  or  by  a  fine  of  not  more  tlian 
$1,000,  or  botli,  and  in  tlio.  second  and  after  offenses  In-  sueli  im- 
prisonment only."  2S  Stat,  at  L.  903,  U.  S.  Comp.  Stat.  lUOl, 
p.  3178. 

The  indictment  charges  a  conspiracy  to  commit  the  offense 
denonneed  by  that  section. 

Judge  Severens,  delivering  the  judgment  of  the  Circnit 
Court  of  Appeals,  tlms  staled,  and  1  tliiidv  accurately,  the  re- 
sult of  certain  evidence  on  the  i)art  of  the  Government:  "Tpon 
the  trial  the  Government  (»tt'ered  evidence  tending  to  pvnve 
that  the  respondents  ad(ii)ted  a  scheme  of  lottery  business  cidlcd 
by  them  'policy,'  Avhich  they  subsciineiitly  carried  into  o])(ra- 
tion,  of  the  character  following:  The  princi])al  office  fur  the 
transaction  of  the  business  was  located  in  a  building  in  Cin- 
cinnati, Ohio,  The  ])lace  where  the  drawings  of  nund)ers  frnm 
a  wheel  wire  made  was  located  in  another  building  or  room 
adjoining  the  principal  olhce  and  connected  with  it  by  a  ])rivi!to 
way.  In  various  places  in  that  city  and  elsewhere,  in  Ohio  and 
other  States,  one,  at  least,  l)i'ing  in  A'ewport,  Kentiicky,  TJicy 
had  offices  or  stations  at  which  the  ])atrons  pui'chased  tickets  or 
chances  in  the  drawings  to  he  thereafter  niad(>  in  Cinciiuiati,  at 
the  place  mentioned.  Successive  nund)ers  from  one  to  seveniy- 
eight,  inclusive,  weri'  each  day  jmt  into  the  wheel,  and  at  each 
drawing  twcKc  nund)ers  wi'i-e  taken  out.  A  list  of  these 
twelve  nundMrs  was  taken  into  the  principal  ollice  and  there  re- 
corded. Several  hours  in  the  day  heforo  these  drawings  re- 
spect iv(dy  took  [)lace  the  natrons  purchased  chances  at  the  sub- 
olhces  or  stations  from  an  agent  of  tl'c  respondents,  or  frnm 
one  of  the  lattc  r,  in  chai'ge  at  that  place.  In  this  instance  the 
purchase  was  made  of  tlii'  respondent  I  loft'  at  the  \ew])ort  of- 
fice. Tlio  purchaser  (Harrison,  in  this  instance)  chose  three  of 
the  nniidiers  from  one  to  seventy-eight,  inclusive,  and  wrote 
them  upon  a  slip  of  pi.per,  of  which,  according  to  the  nu  tliinl 
of  doing  busijiess,  he  kept  a  duplicate.  lie  handed  his  list 
of  nundK'rs,  with  figures  to  denote  the  sum  pai<l,  u])on  a  slip  of 
]>ai)er,  ami  the  money  to  ])ay  for  his  chance,  to  th(>  i)ers(  n  in 
charge,  to  be  transmitted  to  the  principal  office  in  Cincinnati  hy 
the  'carrier,'  who  would  call  to  take  them  uj).  When  these  slips 
and  the  moneys  were  all  brought  into  the  pri»icipal  office,  the 
drawing  alK>ve  mentione.d  took  i)lace.  If  the  three  nund)ers  on 
the  slip  were  of  the  twelve  drawn  fruui  the  wheel,  the  purchaser 


'l^U\   [   <!• 


r  i  \  I 


* 


liT' •■ , 


i!  Hi '':  i 

■  r»' 


^1 


I 

'   1 


'  ''iiil 


em 


AMERICAN  CRIMINAL  REPORTS. 


would  win  tlio  prize,  $200,  when  the  game  (of  which  there  were 
several  forms)  was  played  on  the  basis  above  stated.  If  not, 
he  lost.  A  report  of  the  drawings  was  sent  back  to  the  station 
from  which  the  slip  came,  and  if  any  purchaser  had  made  a 
'hit'  his  slip  would  be  returned  with  the  prize,  to  be  there  de- 
livered to  him.  Of  the  respondents,  ReiHey  was  in  charge  of 
the  principal  office,  Francis  of  the  drawings,  lloff  of  the  station 
in  Newport,  as  already  stated,  and  Edgar  was  the  carrier.  The 
slip  of  paper  taken  by  the  carrier  represented  the  interest  of  the 
purchaser  of  the  chance,  and,  although  containing  figures  only, 
it  had  a  definite  meaning  and  was  understood  by  all  the  i)arties 
concei'neel.  It  was  the  transportation  of  some  of  such  lists,  one 
being  that  of  Harrison,  from  Xewport,  Kentucky,  to  Cincin- 
nati, Ohio,  with  knowledge  of  their  character  that  constituted 
the  overt  act  done  in  pursuance  of  the  conspiracy."  That  the 
counsel  for  the  accused  held  the  same  view  of  the  evidence  is 
shown  in  an  extract  from  their  brief  printed  in  tlie  margin.* 


♦"In  the  Fronds  Case,  now  before  the  court,  It  was  shown  that  the 
principal  office  of  the  'policy'  concern  was  located  In  Cincinnati,  Ohio, 
that  the  drawings  took  place  in  an  adjoining  building  or  room,  and 
that  sub-offices  or  agencies  were  maintained  in  various  places  in  that 
city  and  in  other  cities  in  Ohio  and  other  States,  at  which  patrons  or 
players  would  select  numbers  in  the  drawings  to  be  made  in  Cincin- 
nati. One  desiring  to  play  such  a  game  would  choose  three  of  the 
numbers  from  1  to  78  inclusive,  and  write  them  upon  a  slip  of  paper, 
of  which  he  kept  a  duplicate.  He  would  hand  his  list  of  numbers,  with 
figures  to  denote  the  sum  paid,  together  with  the  money  to  pay  for 
his  chance,  to  the  person  in  charge  of  the  sub-office  or  agency,  to  be 
transmitted  to  the  principal  office  In  Cincinnati.  When  these  slips 
and  the  moneys  were  brought  to  the  principal  office,  the  drawing  took 
place.  Successive  numbers,  from  1  to  78  inclusive,  were  put  into  a 
v.heel  and  at  each  drawing  twelve  numbers  were  taken  out.  If  the 
three  numbers  on  the  slip  were  of  the  twelve  drawn  from  the  wheel, 
the  purchaser  would  win  a  prize.  If  not,  he  lost.  A  report  of  the  draw- 
ings was  sent  back  to  the  agency  from  which  the  slip  came,  and,  if  any 
purchaser  had  won  a  prize,  or,  as  it  is  termed,  made  a  'hit,'  his  slip 
was  returned  with  the  prize,  to  be  there  delivered  to  him.  In  the  in-, 
stance  shown  by  the  testimony,  the  selection  was  made  by  the  witness 
Harrison  at  the  Xewport  office.  The  defendant  Reilley  was  claimed  to 
be  in  charge  of  the  principal  office  in  Cincinnati,  Francis  In  charge  of 
the  drawings,  and  HofT  in  charge  of  the  station  in  Newport.  Edgar 
carried  the  slips  from  Newport  to  Cincinnati,  and  this  carriage  of  the 
slips  constituted  the  alleged  overt  act  done  in  pursuance  of  a  conspiracy 
in  violation  of  the  act  of  Congress." 


FRANCIS  ET  AL.  v.  UNITED  STATES. 


601 


u 


I.  The  act  of  March  2(1,  1895,  chap.  191,  was  under  exami- 
nation by  this  court  in  France  v.  UniLd  States,  16-t  U.  S.  070, 
41  L.  cd.  595,  17  Sup.  Ct.  Rep.  219.  That  was  an  indictment 
for  a  conspiracy  to  violate  its  1st  section.  The  judgment  of 
conviction  in  that  case  was  reversed  upon  the  ground  that  the 
evidence  showed  that  the  papers  and  instruments  which  the  de- 
fendants caused  to  be  carried  from  Kentucky  to  Ohio  did  not 
relate  to  a  lottery  to  be  thereafter  drawn,  but  to  one  that  had 
previously  been  drawn.  The  court  said :  "There  is  no  contra- 
diction in  the  testimony,  and  the  Government  admits  and  as- 
sumes that  the  drawing  in  regard  to  which  these  papers  con- 
tained any  information  had  already  taken  place  in  Kentucky, 
and  it  was  the  result  of  that  drawing  only  that  was  on  its  way 
in  the  hands  of  messengers  to  the  agents  of  the  lottery  in  Cincin- 
nati. The  statute  does  not  cover  tlie  transaction,  and,  however 
reprehensible  the  acts  of  the  plaintiffs  in  error  may  be  thought 
to  bo,  we  cannot  sustain  a  conviction  on  that  ground.  Although 
the  objection  is  a  narrow  one,  yet  the  statute  being  highly  penal, 
rendering  its  violator  liable  to  fine  and  imprisonment,  we  are 
compelled  to  construe  it  strictly.  Full  effect  is  given  to  the 
statute  by  holding  that  the  language  applies  only  to  that  kind 
of  a  paper  which  depends  upon  a  lottery  the  drawing  of  which 
has  not  yet  taken  place,  and  which  paper  purports  to  be  a  cer- 
tificate, etc.,  as  described  in  the  act.  If  it  be  urged  that  tlie  act 
of  these  plaintiffs  in  error  is  within  the  reason  of  the  statute, 
the  answer  must  be  that  it  is  so  far  outside  of  its  langaiagc  that 
to  include  it  within  the  statute  would  be  to  legislate,  and  not 
to  construe  legislation." 

!No  such  point  can  be  made  in  this  case,  because  the  indict- 
ment presents  a  case  within  the  provisions  of  the  statute  as  in- 
terpreted in  France  v.  United  States;  for  it  refers  to  papers 
and  instruments  relating  to  a  lottery  thereafter  to  be  drawn. 
Besides,  there  was  evidence  tending  to  show  that  the  papers 
and  instruments  which  the  defendants  were  charged  to  have 
caused  to  be  carried  from  Kentucky  to  Ohio  had  reference  to  a 
future  drawing,  and  not  to  one  that  had  already  occurred.  And 
the  trial  judge,  after  stating  the  facts,  said  to  the  jury:  "Did 
these  papers,  or  so-called  lottery  ticliets,  which  it  is  alleged 
defendants  conspired  to  carry  from  Kentucky  to  Ohio,  purport 
to  represent  interests  of  players  in  a  drawing  afterwards  to  take 
place  ?    It  is  not  necessary,  gentlemen,  that  they  should  purport 


!  I 


I  (,■  I 


■I  I 


I*' 


.1 


I     ! 


^rm* 


602 


AMERICAN  CRIMINAL  REPORTS. 


']i 


or  show  upon  their  face  that  they  were  tickets  in  a  lottery 
giving  an  interest  to  the  hohh'r  in  a  drawing  afterwards  to  lake 
phace,  bnt  their  pnrport  may  be  sliown  outside  of  the  ])ai)t  rs, 
Xow,  as  to  tlie  evi(hMu;e  offered  l)y  the  Government  npoii  that 
point,  you  will  recall  the  evidence  of  France,  who  was  iiitm- 
dnced  as  an  expert,  to  tell  what  they  were,  and  the  evidence!  of 
llarriscn,  that  he  wrote  out  his  ticket  and  delivered  one  half  of 
it  to  the  a,i;eiit.,  paid  his  money  and  held  the  duplicate, — (nie  of 
the  duplicates,  his  evidence  of  the  interest  he  had  in  the  draw- 
ing that  was  to  come  off  that  day, — and  the  evideiu'c  to  v.liich 
I  have  hefore  referred  as  to  tlie  fact  that  the  duplicate  left 
with  lldiif  was  afterwards  found  in  ])()ss('ssi()n  of  I'ldgar  at  the 
end  of  the  bridge,  shortly  after  the  i)lay  was  made.  If,  from 
these  facts,  you  are  satisfied  that  it  represented  jn  interest  in 
the  drawings  afterwards  to  take  ]dace,  then,  within  the  meaning 
of  the  law,  it  pur])orted  to  rei)re.-('nt  the  interest  of  the  ])layi'r 
in  the  drawing,  although  it  did  not  so  state  upon  its  face." 

II.  In  ClKtiitpioii.  c.  Ames,  arJc,  IJiM,  this  day  deci(h'd,  23 
Suj).  Cr.  Rep,  olM,  it  luis  been  held  that  lottery  tickets  wc  ic 
Bubjects  of  traiiic  among  lh<ise  who  choose  to  sell  or  buy  them; 
that  the  carriage  of  such  tickets  by  independ(Mit  carriers  from 
one  State  to  another  was  therefore  interstate  connnerce ;  that 
under  its  i)ower  to  regulate  connnerce  among  the  several  States, 
Congress — subject  to  the  limitiitions  imposed  by  the  Constitu- 
tion upon  the  powers  granted  by  it — has  ])lenary  authority  over 
such  commerce,  and  may  ])rohibit  the  carriage  of  such  tickets 
from  State  to  State;  and  that  legislation  in  that  end  and  of  that 
character  is  not  inconsistent  with  any  limitation  or  restriction 
imp(»sed  by  the  Constitution  upon  the  exercise  of  the  jxiwers 
granted  to  Congress. 

Here,  there  was  no  carrying  of  lottery  tickets  from  Kentucky 
to  Ohio  by  an  independent  carrier  engage<l  in  the  transporta- 
tion, for  hire,  of  freight  and  packages  from  one  State  to  another. 
But  the  carrying  was  by  an  individual  acting  in  pursuance  of 
a  conspiracy  between  himself  and  others  that  had  for  its  object 
the  carrying  from  Kentucky  to  Ohio  of  certain  papers  or  instru- 
ments representing  a  chance,  share,  or  interest  in  or  de|)endent 
upon  the  event  of  a  lottery,  thereafter  to  l>e  drawn,  which  of- 
fered prizes  dependent  upon  lot  or  chance.  Those  who  were 
])arties  iw  the  cons])iracv  were,  in  effect,  partners  in  committing 
the  crime  denounced  by  the  above  act  of  Congress;  and  the  act 


i 


FRANCIS  ET  AL.  v.  UNITED  STATES. 


603 


of  one  of  the  parties  in  execution  of  the  ol)jec'ts  of  such  conspir- 
acy was  the  act  of  all  the  conspirators. 

The  judgment  therefore  should  he  affirmed,  unless  it  lie  that 
the  carrying-  of  lottery  tickets  from  one  State  to  another  liy  an 
individual,  acting  in  co-ojjeration  with  his  co-conspirators,  h 
not  interstate  ''commei'ce."  Eut  is  it  true  that  the  "coiiiiiurce 
among  the  several  States,"  Avhich  Congress  has  the  ])ower  t^i  reg- 
ulate, cannot  he  carrietl  on  hy  an  iiidividual,  or  hy  a  coiiiiiina- 
tion  of  individuals'^  We  think  not.  In  Patil  v.  Vlnjtui'i.  8 
Wall.  108,  183,  jy  L.  ed.  357,  301,  the  court,  referring  to  the 
grant  to  Congress  of  ])ower  to  regulate  connnei'ce  among  tli(>  sev- 
eral States,  said:  "The  language  of  the  grant  makes  no  n'fer- 
ence  to  tho  instrumentalities  hy  which  eonuneree  may  he  car- 
ried on;  it  is  general  and  inchnh's  alike  conunevce  hy  individ- 
uals, partnerships,  associations,  and  corporations."  In  W'illon 
V.  State  of  Missouri,  91  U.  8.  275,  280,  23  L.  ed.  3-17,  .".  i-'.i,  it 
was  said  that  the  power  to  regulate  commerce  emhri  <'es  "iiU  the 
instruments  hy  which  such  commerce  may  he  conducted."  1'liat 
the  commerce  chiuse  of  the  Constitnticm  end)races  alike  com- 
merce hy  individuals,  ]iartnerships,  associations,  and  corj'nra- 
tions  was  recognized  in  Pciisarola  Tcl((j.  Co.  v.  Wcstcni  U. 
Telcg.  Co.,  i)(5  U.  S.  1,  21,  2+  L.  ed.  708,  715.  And  in  (Uoa- 
ccstcr  Fern/  Co.  v.  Pcunsijlvauia,  114  U.  S.  1!)0,  205,  21t  L. 
ed.  158,  1(12,  1  Inters.  Com.  Eep.  3S2,  380,  5  Su]).  Ct.  lf<'p. 
820,  828,  the  c<nirt  said  that  connnerce  among  the  States  '"in- 
cludes commerce  hy  whomsoever  conducted,  whether  hy  in- 
dividuals or  hy  cor[)orations." 

In  Champion  v.  Ames  the  carrying  of  lottery  ticket-  hap- 
pened to  he  hy  an  incor])oratcd  express  company.  Eut  if  il  had 
been  by  an  express  company  organized  as  a  partnership  or  joint- 
stock  company  tho  result  of  the  decision  could  not  have  lieen 
ditt'erent.  In  this  ease,  if  the  carrying  had  heen  hy  an  ordinary 
express  wagon,  ownied  hy  a  private  person,  hut  employed  liy  the 
accused  and  other  conspirators  to  carry  the  lottery  papirs  in 
question  from  Kentucky  to  Ohio,  surely  the  carrying  in  that 
mode  would  he  commerce  within  the  meaning  of  the  Constitu- 
tion. It  cannot  he  any  less  connnerce  k'caus(>  the  carrying  was 
'  by  an  iu'Uvidual  who,  in  conspiracy  or  co-operation  with  others, 
caused  the  carrying  to  Ix'  done  in  violation  of  the  act  of  Con- 
gress. The  learned  counsel  for  the  accused,  referring  to  tho 
legislation  enacted  prior  to  1895,  which  had  for  its  object  to 


m 


iW 


\'i: 


1:   ■   1 


M 


!'■■ 


IiU 


1 1 


! 

.:i     ! 


■i:r 


i 


m 


m 


iii 


i''ii 


604 


AMERICAN  CRIMINAL  REPORTS. 


exclude  lottery  matter  from  the  mails,  and  to  prohibit  the  im- 
portation of  lottery  matter  from  abroad,  says:  "In  1895  the  act 
now  in  question  was  passed,  supplementing  the  provisions  of  the 
prior  acts  so  as  to  prohibit  the  act  of  causing  lottery  tickets  to 
be  carried  and  lottery  advertisements  to  be  transferred  from  one 
State  to  another  by  any  means  or  methods." 

It  seems  to  me  that  the  evidence  made  a  case  within  the  act  of 
Congress,  and  that  no  error  of  law  was  committed  by  the  trial 
court.  The  pajjers  carried  from  Kentucky  to  Ohio  were  of  the 
class  described  in  the  act,  **any  paper,  certificate,  or  instrument 
purjjorting  to  be  or  represent  a  ticket,  chance,  share,  or  in- 
terest in  or  dependent  upon  the  event  of  a  lottery,  socalled 
gift  concert,  or  similar  enterprise,  offering  prizes  dependent 
upon  lot  or  chance."  The  paper  or  instrument  carried  from 
Kentucky  to  Ohio,  of  which  the  purchaser  had  a  iluplicate,  cer- 
tainly represented  to  all  the  parties  concerned,  a  ehanee,  or 
interest  dependent  upon  an  event  of  a  lottery  or  "similar  enter- 
prise," offering  prizes  dejx'ndent  upon  a  hit  or  chance.  To  hold 
otherwise  is  to  stick  in  the  bark.  It  informed  the  policy  gam- 
bler, if  a  prize  was  drawn,  that  the  person  who  held  the  dupli- 
cate was  entitled  to  the  ])rize,  and  it  was  therefore  a  paper  the 
carrying  of  which  from  one  State  to  another  made  the  con- 
spirators causing  it  to  be  so  carried,  guilty  of  an  offense  under 
the  act  of  Congress.  The  reasoning  by  which  the  case  is  held 
not  to  be  embraced  by  the  act  of  Congress  is  too  astute  and  tech- 
nical to  commend  itself  to  my  judgment.  It  exchides  from  the 
opci'ation  of  the  act  a  case  which,  as  I  think,  is  clearly  within 
its  provisions. 


BiGGERs  v.  State. 

100  Ga.  105—34  S.  E.  Rep.  210. 
Decider!  October  25,  1899. 

Misnomer:     Plea  in  abatetnent  averring  name  to  be,  "Bickers,"  not 

"Diggers,"  held  bad — Idem  sonans. 

1.  Where   a   person   Indicted   In   the   name   of  "Diggers"   pleaded   in 

abatement  that  his  true  name  was  "Bickers,"  and  that  he  had 

never  been  known  and  called  by  the  name  of  "Diggers,"  such  a 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


'•fF 


or 


BIQGERS  «.  STATE. 


605 


plea  was  properly  determined  against  him,  on  the  doctrine  of 
idem  aonana. 
2.  The  verdict  of  guilty  was  demanded  by  the  evidence,  and  there 
was  no  error  In  overruling  the  motion  for  a  new  trial. 
(Syllabus  by  the  Court.) 

Error  to  City  Court  of  Macon;  Hon.  W,  D.  Xottingham, 
Judge. 

Accused  indicted  by  the  name  of  John  Biggers  for  gaming, 
pleads  misnomer,  that  his  name  is  John  Bickers  and  not  John 
Biggers,  which  plea  was  held  bad ;  and  upon  trial  the  accused 
being  convicted,  brings  error.     Affirmed. 

John  R.  Cooper,  for  the  plaintiff  in  error. 

Robert  Ilodgcs,  Solicitor  General,  for  the  State. 

Little,  J.  Plaintiif  in  error  Avas  indicted  in  the  Superior 
Court  of  Bibb  County  for  the  offense  of  gaming,  and  tried  in 
the  City  Court  of  Macon,  and  found  guilty.  lie  pleaded  a 
misnomer  in  abatement,  and  alleged  that  his  true  name  is  not 
"John  Biggers,"  but  that  his  name  is  "John  Bickers,"  etc. 
By  consent,  the  plea  was  submitted  to  the  judge  for  deter- 
mination, who  adjudged  that,  "Upon  hearing  the  evidence, 
I  find  'Bickers'  and  'J3iggers'  are  idem  sonans,  and  find 
agaiust  the  plea."  lie  moved  for  a  new  trial  on  the  ground 
that  the  verdict  was  contrary  to  law  and  the  evidence.  The 
evidence  was  clear  and  overwhelming  that  the  defendant 
was  guilty  of  the  offense  of  playing  and  betting  for  money, 
within  the  statutory  limit  of  time  before  the  finding  of  the 
indictment,  at  a  game  known  as  "craps,"  played  with  dice,  and 
the  only  question  is  whether  or  not  the  court  committed  any 
error  in  his  finding  upon  the  plea  of  misnomer.  We  think  not. 
The  two  names,  "Bickers"  and  "Biggers,"  have  a  very  similar 
sound,  and  the  rule  laid  down  by  Mr.  Bishop  in  his  Criminal 
Procedure  (4th  Ed.,  vol.  1,  §  G88)  is  that  the  law  does  not 
regard  orthography;  that  no  harai  comes  from  misspelling  a 
name,  provided  it  is  idem  sonans  with  the  true  spelling.  He 
cites  a  number  of  cases  to  support  the  doctrine.  In  State  v. 
Blanl'cnsliip,  21  Mo.  504,  "Blackenship"  was  held  to  be  idem 
sonavs  with  "Blankenship" ;  in  Barnes  v.  People,  18  111.  52, 
"Mclnnis"  was  held  to  be  idein  sonans  with  "McGinnis" ;  and 
in  Fletcher  v.  Conly,  2  G.  Greene,  88  (la.),  "Conly"  was  held 


i  ;■  ■  ) 


ii  ^ 


n 


• 

,  ■    ;■ 

ii ; :  't. 

^  !' 

li  1 

'■  '  y. 

1 

il 

1     ; 

If 

1. . 

1 

;■,! 

=  1: 

...i- 

ri  -/-' 

606 


AMERICAN  CRIMINAL  REPORTS. 


idem  sonans  with  "Connolly."  In  18  Gn.  730  (Cliapman  v. 
iStale)  it  was  lieUl  thnt  "Hudson"  wa?.  idi'm  soimus  with  "Ilut- 
son."  In  delivering  the  opinion  in  that  case,  Lunijihin,  J., 
said:  "Idem  sonans  is  no  longer  an  infallihh  test.  Idcnliialc 
personae,  and  not  identUale  nominis,  is,  and  should  always  have 
been,  the  true  and  only  issue."  There  was  no  pretense  in  this 
case  that  the  person  on  trial  was  not  the  person  who  was  guilty 
of  the  (ifTcnse  charged  in  the  bill  of  indictment.  His  \<\v'A  was 
that  he  was  not  indicted  by  his  right  name;  and  while,  in  all 
cases,  the  accused  has  the  right  not  to  be  held  to  answer  to  an 
indictment  framed  against  another  person,  nor  against  himself 
in  any  other  than  his  true  name,  or  in  one  by  which  he  is  known, 
such  innnaterial  error  in  orthography  as  is  alleged  to  exist  in 
this  case  will  not  be  favorably  considered.  There  was  no 
error  in  finding  against  the  plea. 

Jiuhjincnt  affirmed.    All  the  justices  concvrring. 


Note  (By  J.  F.  G.). — The  doctrine  of  idem  sonans. — As  a  genoral 
rule,  a  name  consists  in  ttie  sound  and  not  in  exact  spelling.  All  per- 
Bcns  of  ordinary  intelligence,  education  and  culture,  are  presume  1  to 
be  capalle  of  distinguishing  between  variant  sounds;  but  not  to  pos- 
sess knowledge  as  to  the  exact  spelling  of  names,  especially  so  in  a 
country  where  foreign  names  retain  both  their  foreign  construci  ivo 
spelling  and  sound.  When  the  difterenre  in  spelling  results  in  tha 
same  sound,  as  Cain  and  Kane,  or  In  two  sounds  so  similar  that  they 
are  not  distinguished  by  the  ordinary  ear,  or  are  only  distinguished 
through  undue  effort  and  nicety,  the  doctrine"  of  idem  sonans  ai)pliey. 
The  almost  imperceptible  and  trifling  sound  variations  in  the  names 
Mclnnis  and  McGinuis  (in  the  case  cited  in  the  above  opinion)  Is 
an  excellent  illustration  of  the  rule. 

The  difference  between  the  soft  sound  of  "g"  in  "Biggei-s"  and  the 
harsh  sound  of  "li"  in  "Bickers,"  is  so  marked  as  to  be  easily  dis- 
cernible with  ordinary  pronunciation,  and  by  the  ordinary  ear  of 
the  hearer,  that  they  certainly  cannot  be  correctly  classed  as  idem 
sonans. 

Had  the  Court  been  more  diligent  In  its  search  for  authorities,  it 
wcu'.d  have  discovered  that  the  same  court  which  held  that  Mclnnis 
and  McOinnis  were  idem  sonans.  also  held  that  the  names  Otha  and 
Oatha,  and  the  names  Schoomhoven  and  Schoonhovcr  were  fatally 
variant.  (Brown  v.  People,  66  111.  344;  Schoonhovcn  v.  Oott,  20  III. 
4G.) 

The  above  opinion  should  be  read  in  connection  with  Incin  v.  State, 
deci-'.od  by  the  same  court,  and  reported  in  the  present  volume,  where 
the  court  said: 

"Fo"  the  protection  of  the  accused  it  is  necessary  that,  in  an  In- 
dictment for  an  offense  against  the  person  of  another,  the  person  in- 


BIOOERS  r.  STATE. 


r,07 


Jiireil  should  be  referred  to  by  his  correct  name,  If  it  be  known,  or  by 
somi.  name  by  which  he  is  commonl>  and  generally  callod.  It  fol- 
lows that  where  the  Indictment  names  the  person  Injured  as  'Kd. 
Hightower,'  and  the  proof  shows  that  his  name  Is  'Kdiuiind  (iree;i 
Hightower,'  and  that  he  Is  known  and  called  by  the  name  of  'Green 
Hightower,'  and  has  never  been  known  or  called  by  any  otlior  name, 
the  variance  Is  fatal." 

As  to  what  are.  or  are  not  idem  saiians,  there  Is  a  marked  conflict 
of  authorlilos      Upon  this  subject  the  reader  is  referred  to; 

10  Am.  &  Eng.  Ency.  of  Law.  1st  Ed.,  12:!-]27; 

21  Am.  &  Eng.  Ency.  of  Law,  2nd  Ed.,  313-317; 

3C  Cent.  Digest,  3212-322^. 

The  doctrine  of  Idem  aonans  should  not  6c  flic  controlUmj  tent  ichere 
the  accused  enters  a  plea  of  misnomer.  Whatever  may  lie  tlie  rule  a.i 
to  the  names  of  third  persons  mentioned  in  an  Indutnunt,  a  citizen 
has  the  right  to  bo  known  by,  do  business  Ijy,  and  sue  ;uul  be  sued 
by  his  correct  name,  as  It  Is  spelled.  Not  only  has  each  clti<:cn  that 
right,  but  It  Is  a  matter  of  public  policy  that  court.s  of  roi'ord  particu- 
larly and  accurately  descilbe  the  perions  against  whom  proceeding) 
are  had  and  judgments  rendered.  To  ai)i)ly  the  doctrine  of  idem, 
sor.anti  to  parties  to  the  record  is  liable  to  create  couluslon,  i)c;-i)le:: 
titles,  and  defeat  the  object  of  justice.  Take  for  an  example,  the 
names  Smj/th  and  Smith,  both  of  which  are  pronounced  the  same.  It 
would  certainly  be  unjust  to  bring  a  suit  against  Jamej  ^myth  by 
the  name  of  James  Hmith  and  render  a  judgment  a-iainst  him  by 
that  name,  which  while  it  might  create  a  cloud  upon  the  real  property 
of  another  person,  would  not  create  a  lien  that  would  appear  a  lle.i 
against  the  property  of  the  judgment  debtor. 

A  city  directory,  a  telephone  directory  or  a  renl  estate  index, 
compiled  under  the  doctrine  of  idem  sn)ians.  would  moct  witii  general 
condemnation.  During  a  portion  of  the  present  year  the  writer  has 
lost  the  benefits  of  a  telephone  directory  from  the  fact  that  his  name 
appears  as  Oietinrj  instead  of  Geeting.  The  doctrine  ci  idem  sonana 
was  no  balm  In  thio  instance. 

While  the  doctrine  of  idem  sonans  Is  correctly  applied  to  names  of 
third  persons  appearing  in  indictments  and  other  pleadings  it  should 
have  no  application  to  parties  to  the  record. 

An  Illinois  authority  as  to  pleas  of  misnomer.  In  the  case  of  Amann 
V.  People.  76  111.  188,  it  was  held  that  a  plea  of  misn(j!iier  alleging 
that  the  defendant's  name  was  John  Amann  and  that  he  had  never 
been  known  or  called  John  Ammon  was  in  fact  a  gccd  and  sufficient 
plea. 

We  give  below  the  opinion  in  full  as  It  appears  in  the  official 
report: 

Scott.  J.  This  was  a  prosecution  for  selling  splrituoi's  liquors  to 
a  minor.  Plalntlf  In  error  was  indicted  by  the  name  of  John  Ammon. 
When  arraigned,  he  filed  a  plea  In  abatement,  duly  verified  by  his  af- 
fidavit, setting   forth  that  he  was   named  and  called   Jolin  Amann, 


iiif* 


•    I 


i 


ii  '.  s 


i    :    .1 


;  ;i 


r 


J,  i^ii  jiiii''' ' '  -^'i 


608 


AMERICAN  CRIMINAL  REPORIS. 


and  thnt  ho  had  never  been  named  and  called  John  Ammon.  On  Its 
own  motiun,  the  court  ordered  this  plea  to  be  stricken  from  the  files, 
which  was  done.  The  defendant  excepted  to  the  action  of  the  court, 
and  has  preserved  his  exception  in  the  record  in  duo  form. 

A  trial  was  then  had,  which  resulted  in  a  verdict  of  guilty.  Mo- 
tions for  a  new  trial  and  in  arrest  of  judgment  having  been  over- 
ruled, the  accused  was  sentenced  to  imprisonment  in  the  county  jail 
for  a  period  of  ten  days,  and  adjudged  to  pay  a  fine  of  $20,  together 
with  the  costs  of  prosecution. 

It  was  error  in  the  court,  of  Its  own  motion,  or  for  any  cuuko 
appearing  in  the  record,  to  strike  defendant's  plea  in  abatement  from 
the  flies.  It  was  good  in  form  and  In  substance,  and  ho  was  thereforo 
entitled  to  have  the  issue  tendered  thereby  tried  by  a  Jury,  or  other- 
wise disposed   of  according  to   law. 

For  the  error  indicated  the  Judgment  will  be  reversed  and  the 
cause  remanded. 

Judgment  reversed. 


m 


McKiXNKY  V.  Statk. 

43  Tex.  Crim.  Rep.  3S7— C6  S.  W.  Rep.  7G9— 22  Chi.  Law  J.  404. 

Decided  January  26,  1902. 

Month — Brief  accepted  as  opinion:     Lunar  month — Calendar  month 
— Solar  month — Indictment — Practice. 

1.  The  brief  of  the  Assistant  Attorney  General,  adopted  as  the  opin- 

ion of  the  Court. 

2.  If  there  is  one  good  count  in  the  indictment,  a  general  verdict 

may  be  sustained. 

3.  A  penal  statute  which  declares  a  minimum  penalty  of  imprison- 

ment of  one  month,  must  be  construed  to  mean  a  definite  porlo  I 
of  time.  It  does  not  contemplate  a  lunar  month  of  twenty-eight 
days,  nor  a  calendar  month  of  uncertain  duration,  but  a  solar 
month  and  that  a  month  of  thirty  days. 

Appeal  from  the  Comity  Court,  Collin  County;  Hon.  J.  II. 
Faulkner,  Judge.' 

Samuel  McKinney  convicte<l  of  aggravated  assault,  the  pen- 
alty fixed  at  a  tine  of  $50  and  thirty  days'  imprisonment  in 
the  County  jail,  appeals.     Affirmed. 

Oarneti,  Smith  tC  Merritt,  for  the  appellant. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


McKINNEY  V.  STATE. 


609 


(lar  month 


Ahrrnulhij  tf-  licvprhj,  nnd  Robert  A.  John,  Assistant  Attur- 
ncy  Genci'nl,  for  the  State. 

BitooKs,  J.  Appellant  win  cliarMjcd  l>y  iiidictiiiont  -with  nn 
aggravattMl  assault,  upon  trial  was  convicted,  mid  lii-t  puni^li- 
niont  assessed  at  a  iine  of  $.50  and  thirty  days'  coiitineiiient  in 
the  county  jail. 

The  Assistant  Attorney-General  has  filed  a  very  ahle  brief  in 
this  caso  and  we  adopt  the  same  as  tho  opinion  of  this  court, 
tu-wit: 

"The  record  is  without  statement  of  facts  or  bill  of  excep- 
tions. 

"The  motion  for  new  trial  complains  that  the  court  erred  in 
rL'l'usiiii>'  to  ([uasli  the  lirst  and  second  counts  in  the  indictment. 
The  Slat(!  sidmiits,  there  bein^  no  statement  of  facts,  and  no 
furnial  motion  to  (pnisli  havinj;-  been  made  hi  Hinhw,  and  lie 
fourth  cdunt  in  the  indiclnient  JKiiin'  uncpiestiomibly  good,  liie 
verdict  may  Ik)  aj)plie<l  to  the  fourth  coiuit.  Where  any  cmmt 
in  the  indictmetit  is  guud  and  the  venlict  is  general,  the  ver- 
dict may  be  apjdied  lu  the  count  that  is  gdod.  Isaacs  v.  ISlate, 
IJO  Texas  ('rim.  liep.,  ;">()■). 

"Appellant  in  his  brief  practically  presents  but  one  iiroposi- 
tion;  that  is,  that  the  punishment  for  aggravated  assault  being 
by  tiiK^  not  lesii  than  .$:i.">  \U'V  more  than  $l,0()(i,  or  imprison- 
ment in  the  county  jail  not  less  than  one  moiuh  nor  mon^  than 
two  years,  or  by  b<ith  such  tine  and  imprisoinnent,  the  judg- 
ment of  the  court  assessing  thirty  days'  imprisonment  in  the 
county  jail  does  not  comply  with  the  minimum  })unislniicnt 
lixed  by  law.  The  authorities  cited  by  ajipellant  in  his  brief 
show  ciinclusiv(dy  that  wluM'e  the  word  'month'  is  used  in  a  civil 
statute,  the  meaning  of  the  same  is  a  calendar  month.  This  is 
made  so  by  a  specific  statute.  See  Rev.  Stats.,  art.  3270.  A 
month  as  used  in  the  civil  statute  is  a  calendar  mniith,  ami  is 
determined  arbitrarily  by  tl'.e  uund)er  of  days  that  the  calendar 
gives  to  each  particular  month;  that  is,  thirty-one  days  for 
Janmtry ;  twenty-eight  for  Fel)ruary,  except  leaj)  year,  etc.  In 
civil  contracts,  in  estimating  what  is  a  caleiular  niojith,  the 
authorities  are  almost  unanimous  in  holding  that  it  is  to  be 
counted  from  tho  particular  day  when  it  begins  to  the  cori-c- 
sp(.nding  day  in  the  month  in  which  the  time  expires;  that  is, 
if  it  begins  on  the  5tli  of  January,  it  would  end  on  the  5th  of 

Vol.  XIII— 39 


m\ 


1  i 


!' 


i-i 


'  I  '< 


,!  1  I  I 


m 


'!!l 


U 


n^ 


ii'     I 


€10 


AMERICAN  CRIMINAL  REPORTS. 


Fcbriiavy,  although  thirty-one  days  would  elapse.  If  it  Ix - 
gins  on  the  5th  of  Febvuavy,  it  would  end  on  the  5th  of  March, 
although  but  twonly-eight  days  have  elapsed,  leap  year  beiiiii 
excepted.  Or  ii  it  Ixgins  on  the  5th  of  February  during  Icnp 
year,  it  would  end  on  the  5th  of  March,  although  twenty-nine 
days  elapse.  If  it  begins  on  the  5th  of  June,  it  would  end  on 
the  5th  of  July,  although  thirty  days  had  elapsed.  In  esti- 
mating a  calendar  month  on  civil  contracts,  if  the  month  in 
•which  the  period  ends  has  not  the  corresponding  day  of  the 
month  when  the  period  l)egan,  the  time  expires  with  the  end  nt 
the  month;  that  is,  if  it  began  on  the  31st  day  of  January, 
there  being  no  ulst  day  of  February,  it  would  end  on  the  hist 
day  of  February,  whether  the  2Sth  or  2!>th,  according  to  whetlic  r 
or  not  it  was  leap  year.  McGin  v.  iSlaie,  30  L.  K.  A.,  45i',  anil 
authorities  there  cited. 

''Tliis  can  not  apply  to  a  criminal  statute,  for  the  following 
reasons:  The  punishment  in  tixing  its  mininuun  and  maximmn 
must  bo  definite  and  inflexible.  The  word  month,  as  used  in 
the  cases  cited  by  appellant,  originally  under  the  common  law 
meant  a  lunar  month  of  twenty -eight  days.  IG  Am.  and  Eng. 
Enc.  of  Law,  under  '^[onth' ;  Ivapalje  Law  Die.  ]).  835.  Eapa!- 
je's  Dictionary,  defining  what  the  calendar  montli  means,  states 
that  they  are  of  uneciual  length,  aectu-ding  to  the  almanac  or 
calendar;  and  of  which  twelve  make  a  year.  It  will  therefore 
bo  stK'n,  if  we  say  lunar  month  was  meant  by  the  Legislature, 
we  would  go  against  the  persuasive  statutory  delinition  of  what 
the  word  month  means  in  the  civil  statute.  We  also  contradict 
the  iloctrinis  of  all  AmericaJi  decisions.  IG  Am.  and  Eng. 
Enc.  of  Law,  supra. 

''The  State  therefore  contends  that  the  word  month  means  a 
period  of  days  coi'res])onding  with  what  is  known  as  the  solar 
as  distinguished  from  the  liimir  month;  but  insists  that  it  meaii-^ 
an  exact  number  of  days.  Otherwise  we  would  have  the  follow- 
ing anonuilies: 

''(1)  Should  A  bo  prosecuted  for  an  aggravated  assault,  and 
should  the  verdict  be  one  month,  instead  of  thirty  day.s,  as  in 
the  ease  at  bar,  but  his  trial  occurred  in  January,  he  would  be 
incarcerated  for  thirty-one  days.  If  it  occurred  in  Febnuiry, 
he  would  have  the  good  fortune  of  only  having  to  serve  twenty- 
eight  days,  unless  it  Ix?  leap  year;  and  if  he  was  so  unlucky  as  to 
be  tried  during  leap  year,  he  would  have  to  serve  one  more  day 


If  it  1)<- 

of  Marcli, 

.year  beiiin 

fing  Iciij) 

wenty-niiic 

II  Id  end  on 

In  esti- 

month  in 

lay  of  tlic 

tlif  end  of 

Jannavv, 

)n  tlie  last 

to  wliothc  !• 

,  452,  aui! 

followin<> 
maxiiiuini 
IS  used  in 
union  law 
and  Eng. 
>.    Kapal- 
ans,  states 
Invanac  or 
tlicrd'on^ 
'gislatiirc, 
II  of  what 
•••iitradict 
ind   Eiifi; 

means  a 

the  solar 

it  nicaiis 

le  follow- 

anlt,  an. I 
V!^,  as  in 
A'onld  lie 
ebruarv, 
'  twontv- 
'l<y  as  to 
lore  tlay 


McKINNEY  j;.  STATE. 


611 


than  otherwise,  if  his  trial  wore  in  February.  Tht-roforc,  the 
(lay  when  ho  is  tried  would  decidi-  whetlu'r  he  stayod  in  jail 
thirty-one  days,  or  thirty,  twenty-uiuo,  or  twenty-oight  days. 
Or  it  may  be  he  was  tried  in  a  month  of  thirty-one  days,  and'  if 
he  fails  to  appeal  ho  would  stay  in  jail  thirty-one  days;  but 
should  he  give  notice  of  ai)i)oal,  and  this  court  should  decide  his 
case  in  February,  he  would  be  the  winner  by  three  days,  unless 
he  should  be  so  unfoi'tuJuUo  as  to  have  this  court  decide  las  case 
during  a  leap  year. 

"Again,  one  county,  say  Dallas,  may  hold  her  comity  court  in 
which  she  tries  the  criminal  docket  in  the  months  having  (jiily 
thirty -(Uie  days,  and  trie  adjoining  county  may  hold  its  county 
court  in  months  having  thirty  days.  If  a  man  should  be  con- 
victed in  Dallas  County,  he  would  therefore,  lK>caupe  of  the  acci- 
dent of  the  time  of  the  term  of  the  court,  have  to  serve  one  more 
day  in  Dallas  County  than  ho  would  in  the  adjoining  county. 

'•(2)  It  is  a  well  established  rule  that  in  calculating  the 
calendar  month  or  in  calculating  what  a  month  is  in  law,  that 
in  a  month  ending  on  Sunday  it  is  to  Ix^  excluded.  Therefore, 
if  a  man  were  tried  on  the  31st  day  of  .January  and  began  (m 
that  day  to  serve  his  sentence  of  one  month,  and  if  February 
end  upon  Sunday,  he  would  only  have  to  serve  twenty-seven 
days  to  complete  the  month,  under  the  rule  laid  down  in  civil 
statutes;  whereas,  if  ho  were  tried  DecemlK'r  Olst,  he  would 
have  to  serve  the  31st  of  January,  making  fcmr  days  more.  In 
other  words,  the  "ord  month  must  he  an  inflexible  peri<trl  of  a 
ffiven  nundx'r  of  davs,  consisting  of  a  yiven  number  of  lioin-s 
and  a  given  number  of  minutes  and  a  given  number  of  seconds. 
The  minimum  punishment  must  be  uniform  at  all  times  and 
in  all  places. 

"The  dictionaries  say,  and  the  ctistom  is,  that  the  coin])uta- 
tion  of  interest,  a  month  is  understood  to  be  thirty  days.  AVliere 
a  statute  uses  the  words  'thirty  days'  in  one  i)lace  and  one  month 
in  another,  it  has  lx?en  held  that  the  word  'month'  and  the  words 
'thirty  days'  were  synonymous.  See  Ilcston  v.  Railroad,  79 
Am.  Dec,  434. 

"The  State  further  submits  that,  as  a  matter  of  common 
knowledge,  a  solar  month,  wdierc  simjily  the  word  month  is  to 
he  defined  in  the  abstract,  and  not  any  particular  month  or 
iiumlK'r  of  months  is  referred  to,  it  is  generally  understood 
and  accepted  that  a  month  is  a  period  of  thirty  days.     To  hold 


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612 


AMERICAN  CRIMINAL  REPORTS. 


that  the  words  'one  month'  mean  one  calendar  month,  as  fixoil 
by  the  calendar,  would  work  confusion,  make  the  senti'uoc 
indetinite,  make  the  length  of  the  portion  of  the  imprisunniont 
depend  upon  accident,  and  lead  to  a  destruction  of  the  statute. 
The  purpose  should  be  to  so  construe  a  statute  nn  t  give  it  life, 
and  in  doing-  so,  by  finding  tiiat  the  word  ,  month,'  mean 
thivty  days,  making  thirty  days  synonymous  to  one  Uionth,  will 
not  only  give  life  to  the  law,  but  will  sustain  the  validity  of  the 
verdict  and  judgment  in  this  case." 

Ko  error  appearing  in  the  record,  the  judgment  is  alhruK d. 
Affirmed. 


People  v.  Gallagher. 
38  Chicago  Legal  News  344— (Issue  of  June  6,  1906). 

Tbial — Prejudicial  Error;     Failure  of  court  to  instruct  jury  to  disre- 
gard improper  evidence,  which  had  been  stricken  out. 

1.  The  doctrine  of  error  without  prejudice  has  no  application  to  trials 

upon  felony  charges,  where  the  error  is  something  of  a  substantial 
character,  arising  during  the  trial,  having  a  tendency  to  prejudice 
the  minds  of  a  jury. 

2.  Striking  out  Incompetent  and  prejudicial  testimony  does  not  cure 

the  error  of  its  admission;  especially  so  when  the  court  did  not 
direct  the  jury  to  disregard  such  testimony. 

Criminal  Court  of  Cook  County  (Illinois),  lion.  John  Gib- 
bons, Judge. 

Peter  S.  Gallagher,  found  giiilty  of  receiving  stolen  goods. 
Xew  trial  granted. 

Thomas  J.  Ilcaly,  Assistant  State's  Attorney,  for  the  People. 

P.  J.  Carey,  for  the  defendant,  with  whom  was  Hugh  O'Neill 
and  Edward  C.  lligrjim  in  support  of  the  motion. 

Gibbons,  J.  When  recently  holding  a  term  of  the  Criminal 
Court  of  Cook  County  the  defendant  was  arraigiied  and  placed 
on  trial  l)eforc  a  jury  on  an  indictment  for  rweiving  stolen 
goods  of  the  value  of  alnjut  seventy  dollars.     The  testimony 


For  cases  in  previous  volumea  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


;h/  nicau 


PEOPLE   r.  GALLAGHER. 


613 


nfrainst  tlio  defendant  was  principally  circnnistantial.  Tho  prop- 
erty alleged  to  have  been  stolen  was  a  case  of  cigars  which  Avas 
taken  from  a  car  in  possession  of  the  Chicago  and  Alton  Rail- 
road Company,  and  in  order  to  prove  guilty  knowledge  on  the 
])art  of  the  defendant  it  was  necessary  to  show  that  the  de- 
fendant was  ac(pniintod,  or  in  some  way  connected,  with  parties 
who  were  likely  to  have  stolen  the  cigars  from  the  railroad 
company;  and  to  accomplish  this  end  evidence  was  introduced 
to  show  that  defendant  was  in  the  habit  of  loaning  money  to 
railroad  nun  at  ''ten  per  cent." — tive  per  cent  per  annum  being 
llie  legal  rate  of  -nterest  in  this  State.  After  this  evidence  was 
lieard  by  the  jury  it  was  stricken  out  l)y  order  of  the  court,  but 
1  failed  to  inform  them  to  disregard  it,  or  to  say  anything  to 
the  jury  on  this  subject.  The  jury  found  the  defendant  guilty 
and  if  judgment  be  pronounced  ujxm  the  verdict  it  will  subject 
the  detVndant  to  a  term  of  imprisonment  of  from  one  to  ten 
years  in  tho  penitentiary,  in  the  discretion  of  the  board  of 
parole.  The  defendant  by  his  counsel  has  filed  a  motion  for 
a  new  trial,  wherein  it  is  contended  that  the  defendant  did  not 
have  a  fair  trial. 

First:  Jk'cause  the  court  had  no  power  to  instruct  the  jury 
orally  even  with  consent  of  the  defendant. 

Second :  Jlecause  of  the  error  in  permitting  a  witness  to  testi- 
fy that  defendant  loaned  im>ney  at  usurious  rales  of  interest. 

In  viev7  of  the  conclusion  reached  by  me  it  is  unnecessary 
at  this  time  to  determine  whether  or  not,  in  this  Stalt^,  the  in- 
structions t<t  the  jury,  in  criminal  cases,  must  be  in  writing. 
I  will  therefore  contine  my  opinion  to  the  second  point  raised 
in  tho  motion.  In  criminal  jurisprudence  there  is  no  such 
doctrine  when  a[)plied  to  capital  or  feU>ny  trials  as  ''error  with- 
out prejudice''  when  the  error  complained  of  relates  to  some- 
thing of  a  substantial  nature  arising  in  the  trial. 

On  the  trial  (jf  the  above  Causi'  a  witness  testified  that  the 
defendant  loaned  mon(>y  to  railroad  men  at  "ten  ])er  cent."  It 
is  a  nuitter  of  common  knowledge  in  this  city  that  some  money- 
lenders exact  from  their  victims  as  high  as  five  or  ten  per 
cent,  a  month.  Ko  ex[)lanation  was  given  whether  the  defend- 
ant loaned  money  at  ten  per  cent,  a  year  or  ten  per  cent,  a 
month,  and  although  this  item  of  evidence  was  stricken  out 
inunediately  by  order  of  the  court  1  failed  to  direct  the  jury 
to  disregard  it. 


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ii 


m 


614 


AMERICAN  CRIMINAL  REPORTS. 


The  usurer  is  denounced  by  all  laws — ^luunan  and  divine — 
and  no  character  has  ever  been  so  detestable  to  both  Jew  and 
Gentile  as  the  character  of  the  usurer  Shylock.  So  that  to 
designate  a  man  as  an  iisurer  is  sufficient  to  danni  him  in  tlie 
estimation  of  the  average  man  in  the  ordinary  walks  of  life. 

This  cotirt  must  assume,  therefore,  that  the  introduction  of 
the  evidence  was  prejudicial  error  which  could  not  be  cured 
by  being  struck  out  by  the  court.  Even  in  civil  cases  it  hns 
often  been  held  that  the  vice  of  permittijig  improper  evidence 
to  go  before  the  jury  is  not  cured  by  its  being  immediatcdy 
stricken  out  by  order  of  the  court.  In  the  recent  case  of  Chi- 
cago City  Eij.  Co.  V.  Wkite,  110  111.  App.  23,  it  is  held: 

"Where,  over  objection,  incomjietent  evidence  has  l)een  re- 
ceived in  a  jury  trial,  it  nuist  appear  that  the  verdict  rendered 
was  not  affected  by  it,  or  the  judgment  will  be  reversed ;  even 
though  it  was  afterwards  stricken  out.  Such  testimony  imiy 
influence  the  jury,  notwithstanding  the  efforts  of  the  court  to 
counteract  it.  Adams  v.  Russell,  S5  111.  2S4-;  Pni/icld  v.  Car- 
penier,  13  Johns  (X.  Y.)  3~)0;  Erhen  v.  Lollllard,  19  X.  \. 
209 ;  Roijcrs  v.  ^Slatc,  (!()  Ark.  7(5. 

Besides  the  above  cases,  in  Brazil  v.  State,  83  Ala.  ftit  (7  Am. 
Cr.  Kep.  58),  which  is  a  case  directly  in  point,  Mr.  Chief  rlus- 
tice  Stone,  an  eminent  jurist,  speaking  for  the  court,  snys: 

''The  court,  against  di'ffudant's  dhjection,  allt)wed  the  prose- 
cution to  ask  him,  on  cross-examination,  as  a  witness,  many 
questions,  and  to  obtain  atiswers  to  them,  as  to  a  niortgnge 
made  by  him,  and  as  to  the  quantity  of  cotton  he  had  ))i(d\ed 
out,  which  were  wholly  irrelevant  to  the  chnrge  preferred  against 
either  defendant.  We  confess  that  we  are  not  able  to  perceive 
ch'arly  what  influence  these  questions  or  the  answers  to  them 
could  have  exerted  in  the  delilx'rations  of  the  jury.  Possibly 
their  tendency  was  to  raise  an  intpiirv  into  the  fair  dealing 
of  the  witness,  who  was  himself  the  defendant  on  trial.  It  is 
not  enough,  howtver,  that  we  cannot  perceive  the  injury.  Prima 
facie  injury  is  presumed  when  error  is  shoAvn.  It  would  l)e  a 
hazardous  precedent  to  establish  the  doctrine  of  error  without 
injury  when  a  criminal  accusation  is  under  review.  The 
County  Court  erred  in  admitting  this  testimony."  And  for 
this  error  the  court  reversed  the  judgment. 

Believing,  as  I  do,  that  the  rule  announced  in  the  cases 
above  ciied  is  founded  upon  the  reason  and  i)hilosophy  of  tao 


OLDHAM  V.  COMMONWEALTH. 


615 


1  divine — 
1  Jew  and 
50  that  to 
liin  in  tbv 
of  life. 
Inction  of 

lie  en  red 
sc's  it  has 
'  evidenoo 
nicd  lately 
0  of  Chi- 
ll: 

l>oon  ]•('- 

rendered 
M'{\ ;  even 
lony  may 

conrt  to 
d  V.  Car- 
l!)  X.   V. 

r.  (7  Am. 
hief  Jns- 
says : 
lie  prose- 
's, many 
iiort^^ago 
d  picked 
1  Ji.nainst 
])('rceive 
to  them 
I'ossihiy 

dealing- 
1.     It  is 

i'rlma 
lid  W;  a 
witlioiit 
'.  The 
bid  for 

0  cases 

of  tiiO 


law  when  applied  to  capital  and  felony  cases  I  deem  it  mv 
imperative  duty  to  grant  the  defendant  in  this  case  a  ne\v 
trial ;  and  it  is  so  ordered. 

Note.— Although  this  opinion  was  not  delivered  within  the  pericd 
from  which  we  talte  our  principal  cases,  the  fact  that  it  is  one  of  iirac- 
tical  value,  together  with  the  fact  that  it  was  delivered  by  the  le-ivuod 
jurist  who  edited  several  volumes  of  the  American  Criminal  llcports 
gives  it  a  place  among  leading  cases  on  the  subject  of  Tkials.  Its  dor- 
trine  is  sustained  by  Shepherd  v.  State,  11  Am.  Cr.  II.  290;  S8  Wis. 
1S5;  59  N.  W.  Rep.  449. 

The  Criminal  Court  of  Cook  County  has  no  judges  of  its  own;  its 
terms  are  held  by  one  or  more  judges  from  the  Circuit  Court  of  Cook 
County  and  the  Superior  Court  of  Cook  County,  by  order  of  Ciniiit, 
Superior  and  County  judges  in  joint  session.  This  explains  the  intro- 
duction to  the  opinion,  in  which  the  learned  judge  says:  "When  re- 
cently holding  a  term  of  the  Criminal  Court  of  Cook  County."  l^vi- 
dently  he  had  taken  the  matter  under  advisement,  and  wrote  the  opin- 
ion after  returning  to  the  Circuit  Court. 


Oldifa^i  v.  CoirMoxwic.M.Tir. 

22  Ky.  L.  Rep.  520—58  S.  W.  Rep.  418. 
Decided  Sept.   21,   1900. 

TiiIAl:     Improper  evidence  in  rebuttal — Silly  remark  hy  prosecuting 
attorney. 

1.  A  witness  subpoenaed  for  the  i)rosecution,  whose  presence  dining 

the  entire  trial  and  whose  toslimony  was  well  known  to  the  iiros- 
ecuting  attorney,  was  introduced  in  rebuttal,  but  upon  the  main 
facts,  no  reason  being  given  why  such  witness  was  not  introduced 
on  the  main  case.     Held,  error. 

2.  Upon   objection  to   such   v.itness,   it  was   imi)roper  for  the  prose- 

cuting attorney  to  remark  in  the  presence  of  the  jury:  "Oh,  yes; 
I  knew  you  would  object,  for  it  cooks  your  goose." 

Appeal  from  the  Cireiiit  Court,  (lirisiiaii  County. 
Dutch  Oldham,  convicled  oi"  malifious  shootiui-',  etc.,  ap]H'als. 
Reversed.  ^ 

Landes  tC  AlJoisiroHh,  for  the  appellant. 

Eohcrt  J.  Brech'inri(hj<',  for  appellee. 


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For  cases  in  previous  volumes  on  any  subje-t,  see  Table  of  Topics  iu 
this  volume. 


ml 


.  i.J«i"i'^  '^ — 


w 


h 


1,  ' 


616 


AMERICAN  CRIMINAL  REPORTS. 


BuRNAM,  J.  The  appellant  was  indicted  by  the  grand  jury 
in  Christian  County  for  maliciously  shooting  and  wouudiiiii 
!Maek  Tandy  with  intent  to  kill  him,  hut  of  which  wound  he 
did  not  die. 

A  trial  before  a  petit  jury  resulted  in  a  verdict  and  judgment 
sentencing  him  to  the  penitentiary  for  a  period  of  2VL'  yenr?;, 
which  we  are  asked  to  reverse  on  the  ground  that  the  court 
permitted  the  Commonweahh,  over  the  objections  of  the  de- 
fendant, to  introduce  testimony  in '  chief  after  it  had  closed 
its  testimony,  and  after  the  defendant  had  introduced  all  his 
proof,  and  because  of  improper  language  by  the  C\)mm()n- 
weahh's  attorney  in  the  presence  of  the  jury  during  the  trial. 

The  testimony  of  the  witnesses  introduced  in  chief  by  the 
Commonwealth  is  to  the  effect  that  Tandy,  the  party  who  was 
shot,  began  the  ditliculty  several  days  before  the  shooting  by 
accusing  appellant  of  stealing,  riding  and  breaking  his  saddle, 
and  (knuuiding  to  l)e  paid  therefor,  at  the  sanu;  time  cursing 
and  ihreatening  to  kill  appellant.  On  this  occasion  ai)|<ellaut 
admit  led  having  ridden  the  saddle,  but  said  it  was  without  evil 
iutenlion,  and  denied  that  he  had  brcjken  it,  but  said  that  he 
was  willing  to  pay  for  it.  This  explanation,  however,  was  Udt 
satisfiu'iory  to  Tandy.  A  few  days  afterwards  they  again  nu't 
on  llie  jxirch  at  the  house  of  a  common  acquaintance,  where  a 
dinu'c  was  in  progress,  when  Tandy  ap])roached  app(dlant  with 
a  knife  in  his  hand,  accusing  him  of  breaking  his  saddle,  and 
deiii;niding  paymejit  therefor,  with  threats  of  viDlence,  and  a 
ditliculty  was  only  prevented  at  that  time  by  the  interference 
of  bystanders,  who  separated  them.  Ai)])ellant  then  went  nu 
the  inside  of  the  house,  and  about  two  hours  thereafter  Tan<ly 
followed  him  into  the  house,  an<l  again  approached  him,  dc- 
nnuiding  to  know  what  he  intended  to  do  aUjut  the  saddle, 
and  informing  him  ''that  he  woidd  have  to  pay  for  it  then  or 
go  to  war."  Till  ajJiK'Uant  responded  that  he  thought  the  mat- 
ter was  settled  ;  that  he  was  willing  to  pay  for  it,  and  that  thiit 
was  all  he  could  do  about  it.  Tandy  thereupon  n  plied  that  it 
was  not  pettle<l,  and  invited  api)ellant  out  of  doors  witii  him, 
backing  sideways,  towards  the  door  with  his  hand  in  his  hip 
p(i(k(  t.  Under  these  circumstances  appellant  iired,  shooting 
Ta;;dy  in  the  leg.  The  testinamy  of  defendant's  witnc^^c  was 
not  essentially  different  from  that  of  the  (.'omnionweall h"s  wit- 
nesses. They  stated,  liowi  \(>r,  in  addition,  that  tluy  thought 
Tandy  was  going  to  shoot  appellant  just  as  he  lired. 


OLDHAM  V.  COMMONWEALTH, 


617 


I 


Aftor  the  close  of  the  testimony  for  the  ilcfoiulniit,  tlip  C'om- 
iiioiiw.'alth  iutrocliu'cd  one  Williaiu  Lcdt'ord,  who  had  Ixcii 
rcguhiidy  subpa'uaed  by  the  CJoiuiiiunwealth,  and  who  cainc  to 
the  trial  in  a  buggy  with  Tandy,  and  had  talked  with  the 
Conimomvealth's  attorney  before  tlie  trial,  and  tnld  him  what 
ho  could  prove,  and  had  been  in  the  court  room  during  the 
trial.  Appellant  objected  to  this  testimony  and  moved  I  hat  it 
be  exehuh'd  from  the  jury.  At  the  time  of  the  ohjeclion  the 
Conimomvealth's  attorney  said,  "Oh,  yes;  I  knew  you  would 
object,  for  it  cooks  your  goose."  This  language  was  excepted 
to  at  the  time  as  improper.  The  witness  testihed  to  the  same 
general  facts  as  had  been  pnn-en  by  the  (^inunonwi'alth  in  the 
opening  of  its  case,  and  should  have  been  introddced  at  that 
time,  and  no  reason  is  assigned  why  he  was  not  then  introduced. 
Coming,  as  it  did,  at  the  close  of  the  case,  his  testimony  was 
prejudicial  to  appellant,  as  it  was  calculated  to  inive  undue  in- 
fluence over  the  minds  of  the  jury.  Section  220  of  the  Criminal 
Code  reqiiires  the  Commonwealth's  attorney  to  oifer  his  evi- 
dence in  chief  in  su])port  of  the  indictment  at  the  iK^yinning  of 
the  trial;  "and,  while  a  trial  judge  has  necessarily  a  reasonable 
discretion  in  regulating  the  introduction  of  testimony,  there 
should  always  be  a  good  cause  for  the  introduction  ol'  testimony 
in  chief  out  of  its  regular  order,"  es])ecially  in  a  case  of  this 
kind.     See  Williams  c.  Com.,  DO  Ky.  .V.*!),  U  S.  \V.  n!).-). 

It  was  improper  for  the  Commonwealth's  attorney  to  inject 
at  this  point  the  remark  that  the  testimony  of  the  witness  Led- 
ford  cooked  the  goose  of  appellant.  The  objection  of  appellant 
to  the  introduction  of  the  witness,  and  the  motion  to  have  his 
testimony  excluded  from  the  jury,  wii-e  rights  of  the  dcfcmdanf, 
and  maile  at  the  proper  (iuie,  and,  in  our  opinu)n,  should  have 
been  sustained. 

For  these  reasons,  we  think  that  the  defendant  has  not  had 
a  fair  and  impartial  trial,  and  the  judgment  is  reversed,  and 
thv  \'auso  remanded  for  proceedings  consistent  hevcwilli. 

NoTK  (l)v  J.  F.  G.).— The  conduct  of  the  attorney  who  appeared  for 
the  Coiuiuonwealth  at  the  trial  deserves  the  censure  of  all  lawyers  who 
favor  the  higher  ideals  of  our  profession;  both  as  to  his  deliberately 
withholding  evidence  of  the  main  case,  until  ihe  defense  had  closed, 
and  thou  forcing  it  before  the  jury,  and  his  effort  to  apiu-ar  brilliant 
and  witty,  by  the  use  of  an  ini;)ertinent,  meaninKless.  .uul  silly  expres- 
sion unbecoming  to  any  gentleman  who  has  sufficient  attainments  to  be 
a  member  of  the  bar.    An  educated  man  should  be  able  to  express  any 


m 


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618 


AMERICAN  CRIMINAL  REPORTS. 


phase  of  thought  In  choice  and  refined  language,  without  resort  to 
slang  phrases.  It  is  no  excuse  that  he  was  attempting  a  display  cf 
wit.  There  was  no  occasion  for  wit;  nor  was  there  any  expressed. 
Originality  is  the  spice  of  wit.  That,  which  as  an  Impromptu  ori  ir.il 
expression  is  wit,  and  remains  so  when  simply  referred  to  in  spciiAing 
of  the  events  of  its  cre?.t!on,  or  is  seeminsly  so  when  repeated  to  nev 
hearers,  becomes  dull  and  insipid  by  continuous  use.  The  phra:?o — 
"That  cooks  your  goose" — and  others  of  like  kind,  which  are  now  of 
common  use,  have  lost  all  of  the  spice  of  wit,  if  any  ever  possessed; 
and  when  used,  is  a  frank  confession,  that  the  speaker  does  not  pos- 
sess originality,  discretion,  refinement,  or  the  appreciating  of  roil 
wit.  True  It  may  be,  that  such  expressions  are  pleasing  to  the  ear  of 
the  crude  and  vulgar;  but  the  lawyer  who  speaks  to  please  the 
loungers,  and  carries  into  Court  the  crude,  distasteful  and  nauseating, 
expressions  used  In  saloons  and  corner-groceries,  has  neither  respect 
for  himself  nor  the  Court  in  which  he  pleads. 

How  applicable  is  the  following  language  of  the  Supreme  Court  of 
Illinois  in  Hauser  v.  People,  210  111.  253. 

"The  argument  indulged  in  by  counsel  for  the  prosecution  cannot 
be  commended.  The  use  in  an  argument  of  coarse  expressions  and  of 
words  from  the  'slang'  of  the  low  and  vicious  classes  may  at  times  be 
justific'l  by  the  chiiracter  of  the  proof,  but  their  use  beyond  the  ne.es- 
sities  of  the  case  is  not  creditable  to  counsel  nor  respectful  to  the 
court  and  the  jury.  We  think  there  was  unnecessary  repetition  of  lan- 
guage of  this  character  by  counsel  for  the  prosecution,  but  we  are  un- 
able to  say  that  the  plaintiffs  in  error  were  thereby  deprived  of  any 
substantial  right.  Had  counsel  more  wisely  and  with  greater  pro- 
priety chosen  to  express  the  same  thoughts  in  more  refined  language 
their  arguments  would  have  been  more  seemly,  and,  as  we  believe, 
not  less  effective." 


Bailky  v.  Commonwealth. 

24  Ky.  Law  Rep.  1418—71  S.  W.  Rep.  632. 

Decided  Jan.  27,  1903. 

Trial:     No  proof  of  venue — Instruction  in  absence  of  defendant,  pre- 
sumed to  be  prejudicial. 

1.  Failure  to  prove  the  venue  of  the  alleged  crime  is  reversible  error. 

2.  After  the  case  was  submitted  to  the  jury,  and  in  the  absence  of 

the  defendant,  the  Judge,  at  a  request  of  the  jury,  gave  an  ex- 
planatory instruction.    Held,  reversible  error. 

3.  Absence  of  the  accused  at  such  time  is  presumed  to  be  prejudicial. 


For  case.^  in  previous  volumes  on  any  subject,  see  Table  of  Topics  i;i 
this  volume. 


BAILEY  V.  COMMONWEALTH. 


619 


s;)o;'.ki:iK 


Appeal  from  the  Circuit  Court,  Magoffin  County. 
Sliiml)o  Bailey,  convicted  of  an  assault  with  intent,  appeals. 
Eeversetl. 

James  P.  Adams,  for  the  appellant. 

Clifton  J.  Pratt  and  M.  R.  Todd,  f(,r  tlio  Commonwonidi.      ' 

BuRXAM,  C.  J.  This  is  an  ap])eal  from  a  jndiinnciil  of  tlio 
MagoiHn  Circuit  Court  sentencing  tlie  appellant,  Siiinilxi  I'.nilcy, 
to  iniprisonnient  in  tlie  penitentiary  for  one  vear  fur  linvin"* 
nialieidusly  cut  and  wounded  Leo  Arnett,  with  the  intent  to 
kill  him. 

The  first  gronnd  relied  on  for  reversal  is  that  llie  veime  of 
the  oll'ense  charged  in  the  indictment  is  not  shown  liy  the  proof 
in  the  ease.  Suhsection  !}  of  section  121-  of  the  Criniiiiiil  ( 'oilo 
provides  that  the  indictment  must  he  direct  and  c(>rtaiii  us  re- 
gards the  county  in  which  the  oirensc  Avas  connnitted,  iuid  the 
evidence,  eipudly  with  the  allegation,  must  show  the  c.niiuy  in 
which  the  oil'ense  was  connnitted.  A  verv  full  and  iiilcrc-tinir 
discussi(jn  td"  these  questions  is  found  in  ehapter  '1\,  I  llisli. 
New  Cr.  Proc.  There  is  no  evideneo  in  the  hill  of  eNci|itious 
in  the  case  that  the  crime  for  which  apiiellaiit  was  cDiuictid 
was  committed  in  the  County  of  ^lagoliln,  and  as  said  in  U'/Z/.v// 
V.  Com.  (Ky.),  47  S.  W.  221,  ''It  would  he  going  ton  far  to 
sanction  a  verdict  hased  upon  the  existence  of  an  indis])(  n-ahlc 
fact,  which  the  jury  could  not  find  from  the  evidence  before 
them  to  exist.'* 

And  we  think  the  trial  court  erred,  to  a]ipcllant's  prejudice, 
in  another  step  in  the  trial.  After  the  jury  had  considei'c  d  tlio 
case  for  some  time,  they  returned  into  court  and  aininiinced 
tiuit  they  had  not  agreed  \\\m)\\  a  verdict,  and  requcsidl  the 
court  to  oxi)lain  the  meaning  of  the  term  'Mnalice  aforctlmnuht," 
which  the  court  proceeded  to  do  in  the  absence  of  the  defendant. 
The  jury  then  retired,  and  in  a  short  time  retnrned  and  an- 
nounced their  verdict.  Section  IS;}  of  the  Crinunal  ('o<lo  re- 
quires that,  upon  the  trial  of  an  indictment  for  a  felony,  the 
defendant  must  be  present  during  the  trial. 

In  Meece  v.  Com.,  78  Ky.  580,  it  was  held  error  to  instruct 
the  jury  in  the  absence  of  the  accused.     The  court  said: 

"\Vhen  instructions  arc  given  by  the  court,  or  when  the  jury, 
returning  from  their  room,  desire  to  be  further  instructed,  the 


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AMERICAN  CRIMINAL  REPORTS. 


prrsciico  of  the  accused  is  of  tlio  gi'oatcst  itiiportnnce,  ns  ho 
tuny  k;  able  to  sii^ff;t'st  to  the  court  oi*  his  counsel  stjino  int'ornia- 
tioii  that  wouM  throw  some  a<hlitional  light  on  his  (lefeus(>. 
lie  hhniild  also  he  ])r(sent  that  he  may  exc('])t  to  the  iMilings  (if 
the  court,  and  the  record  must  show  atKrmatively  tiiat  he  eould 
in  no  wise  have  been  prejudiced  by  it,  else  this  court  will  re- 
verse tiie  judgment." 

The  testimony  as  to  tlie  facts  which  must  determine  the  guilt 
or  innocence  of  the  accused  is  very  conflicting,  and  we  are  not 
l)rei)ared  to  say  that  either  of  the  errors  pidnted  out  supra  was 
not  i)reju<licial  to  the  sul)stantial  rights  of  tlie  accused. 

For  nasons  indicated,  the  judgment  is  reversed,  and  causo 
reuuuided  for  a  new  trial  consistent  with  this  opinion. 


Statk  v.  luWFN. 

9  Idaho  35—71  Pac.  Rep.  COS. 

Decided  February  4.  1903. 

Trial — Ditiks  of  Puoskci  tinci  Attoh.nkys — Cuoss  Examination:  7m- 
proper  questiuH  and  insittiintions — Duties  of  prosecuting  attor- 
neys— Tendency  of  prosecuting  attorneys  in  their  zeal  to  forget 
their  duties;  and  of  the  Juror  to  place  undue  weight  on  their 
remarks  and  insinuations — Review  of  authorities — Practice,  as 
to  exceptions. 

1.  Wtiere  an   assistant   prosecutor  asks  the  son  of  the  accused,   on 

cross-examination,  if  he  had  not  stated  to  A.  that  he  suspected 
his  father  of  havlnR  committed  a  similar  offense  with  other  girls, 
one  a  member  of  his  family,  and  that  such  conduct  on  the  part 
of  the  accused  caused  the  death  of  witness'  mother,  and  that  if 
at  sucli  conversation  witness  did  not  cry,  and  say,  "I  can't  go 
agitinst  my  father,  even  if  he  is  guilty,"  and  repeatedly  asks  sub- 
stantially the  same  questions,  such  conduct  of  the  prosecutor  is 
reversible  error. 

2.  Such  questions  are  imi)roper  cross-examination,  and  should  not  be 

allowed  under  the  guise  of  impeaching  the  witness. 

3.  It  is  the  duty  of  the  prosecutor  to  see  that  a  defendant  has  a  fair 

trial,  and  that  nothing  but  conuietent,  evidence  is  submitted  to 
the  jury;  and  above  all  things  he  should  guard  against  anything 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


STATE  V.  IRWIN. 


Dlil 


that  would  prejudice  the  minds  of  the  jurors,  and  tend  to  hliuhn- 
them  from  considering  only  the  evidence  introducod.     Ho  aliould 
never  seek  by  any  artillco  to  warp  the  minds  of  the  jurors  by  in- 
ference and  Insinuations. 
(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Wushiiigtou  County ;  Ilou.  Geo. 
II.  Stewart,  Judj^e. 

Williaui  Irwiu,  convicted  of  rape,  appeals.    Reversed. 

Frank  Harris  and  ^l.  A.  Prahcr,  for  api)ollaut. 

John  A.  Ba<jley,  Atttjniey  General,  for  the  State. 

AiLsiiiE,  J.  The  defendant  was  convicted  of  the  eriiiic  of 
rape,  aUe^cd  to  have  heeu  e<iniiiiitted  on  one  lX)ra  Irwin,  a 
female  child,  who  at  the  time  of  the  alleged  (iflVnse  was  of  the 
ago  of  14  years  and  11  months,  and  he  was  thereupon  sentenced 
to  serve  a  term  of  10  years  in  the  State  penitentiary. 

The  offense  is  alleged  to  have  been  committed  at  ^NFeadows, 
in  the  county  of  Wa.shington,  on  the  4th  (hiy  of  July,  1!M)j. 
Defendant  appeals  from  the  judginrnt,  and  from  an  orck'r  deny- 
ing his  motion  for  a  new  trial,  and  in  this  court  the  two  prin- 
cipal qu(>stions,  as  presented  for  our  consideration,  are:  "(1) 
That  the  court  erred  in  refusing  to  instruct  the  jury  that  it 
was  necessary  for  the  prosecution  to  ]u-ove  that  at  the  time  of 
the  alleged  oifense  the  prosecutrix,  Dora  Irwin,  was  not  the 
wife  of  the  defendant,  and  that  the  court  ei'red  in  refusing  to 
grant  a  new  trial  upon  the  ground  that  the  evidence  did  net 
show  that  said  Dora  Irwin  was  not  at  the  time  of  the  alleged 
oifense  the  wife  of  defendant.  (2)  ]\riscon(luct  on  the  jiarr 
of  the  assistant  prosecutor  in  the  rej)eated  asking  of  certain 
questions  on  cross-exanunation  of  the  witness  Daniel  Irwin  im- 
puting to  the  defendant  other  like  crimes,  and  to  the  rulings  of 
the  court  in  permitting  such  (piesti<uis  to  he  answered." 

(\)unsel  for  defendant  contend  that  umh'r  the  provisions  of 
section  0705  of  the  Itevised  Statutes,  as  amended,  it  is  necessary 
for  the  information  to  allege  that  the  fenuale  upon  whom  the 
oifense  is  charged  to  have  Ixen  connnitted  was  not  at  the  time 
thereof  the  wife  of  the  defendant,  and  that  the  court  should 
have  instructed  the  jury  that  it  is  necessary  for  the  State  to 
prove  such  fact  the  same  as  any  other  fact  in  the  case.  We  are 
not  called  upon  in  this  case  to  pass  upon  that  question,  for  the 


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AMERICAN  CRIMINAL  REPORTS. 


>•  Si; 


reason  that  the  information  charges  that  the  offense  was  com- 
mitted upon  "one  Dora  Irwin,  a  female,  not  the  wife  of  him, 
the  said  William  Irwin,"  and  the  court  instructed  the  jury  tliat 
such  fact  must  be  proven,  and  we  think  it  was  proven.  In 
instruction  No.  8  we  find  the  following  language:  *'To  warrant 
a  conviction  of  the  defendant,  therefore,  of  the  crime  chargiMJ 
in  the  information,  to  wit,  rape,  the  State  must  prove  beyond 
a  reasonable  doubt:  *  *  *  (2)  That  at  said  time  the  said 
Dora  Irwin  was  a  female  child  under  the  age  of  18  years,  and 
not  the  wife  of  the  defendant."  We  have  carefully  examined 
tlie  record  in  this  case,  and  think  the  evidence  as  given  by  tlie 
defendant  himself  suffciently  establishes  the  fact  that  the  said 
Dora  Irwin  was  not  the  wife  of  defendant.  We  find  in  the 
record  tlie  defendant  referring  to  the  prosecutrix  as  "^liss 
Dora"  and  "my  granddaughter"  and  "the  girl,"  and  we  find 
her,  on  the  other  hand,  referring  to  the  defendant  as  "my  uncle 
Bill." 

The  second  contention  of  the  defendant,  however,  is  a  nuioh 
graver  question,  and  one  on  which  we  have  examined  many 
aiithorities  before  arriving  at  the  conclusion  which  we  are  com- 
pelled to  announce  in  this  case.  The  defendant  called  his  son, 
Daniel  Irwin,  as  a  witness,  and  examined  him,  and  thenupou 
he  was  cross-examined  by  the  Assistant  Prosecutor,  and,  among 
other  things,  we  find  that  in  the  course  of  such  ci'oss-examina- 
tion  the  following  questions  were  put,  and  answers,  objections, 
and  rulings  by  the  court  were  made: 

"Q,  Did  you  not,  in  the  course  of  that  conversation  with 
Mary  IMiillips,  say  also,  in  substance  and  effect,  that  you  sus- 
picioned  your  father  of  having  done  the  same  thing  with  other 
girls,  mentioning  one  of  your  family?    A.    No,  sir. 

Q.   You  swear  to  that  ?    A.   Yes,  sir. 

Q.  Did  you  not  on  that  occasion  cry  bitterly?  A.  I  might 
have  shed  a  few  tears;  but  very  few,  I  think. 

Q.  Did  you  not,  in  the  fourse  of  that  conversation  with  ^fary 
Pbillips,  say  also,  in  substance  and  effect,  that  your  father's 
actions  with  the  other  girl — with  the  mendwr  of  the  family 
referred  to — had  caused  your  mother's  death  ? 

^fr.  Irwin :  We  object  to  that  as  immaterial,  incompetent, 
and  irrelevant,  and  not  proper  cross-examination  of  the  witness. 
(Objection  sustained.) 


■n- 


STATE  V.  IRWIN. 


623 


Q.  Did  you  see  Miss  Phillips  since  you  have  been  here  in 
Weiser?    A.    Yes,  sir. 

Mr.  Irw'n:  At  this  time  we  wish  to  take  an  exception  to 
the  special  counsel  for  the  prosecution  in  propounding  (piestions 
to  the  witness,  as  being  an  invasion  of  the  rights  of  the  defend- 
ant, and  for  the  purpose  of  attempting  to  prejudice  the  rights 
cf  the  defendant  in  this  acti(m,  being  a  matter  not  relevant,  and 
pertaining  to  no  matter  under  discussion  before  the  court. 

The  Court:  The  court  sustains  objections  to  such  questions 
as  the  court  deems  improper. 

Mr.  Invin:  I  am  not  making  any  objections  as  regards  the 
court.  I  am  taking  an  exception  particularly  to  the  conduct 
of  counsel  in  that  i)articular  matter  in  embodying  in  his  (|ues- 
tions  the  same  elements  to  which  the  court  has  sustained  objec- 
tions in  the  precetling  question. 

Q.  I  will  ask  you  if  you  saw  Miss  Phillips  in  this  town  on 
the  evening  of  !March  12th  of  this  present  year^  A.  I  don't 
know.  I  believe  I  did.  I  have  seen  her  several  times  since  I 
have  been  in  town.     I  am  not  jiositivc  of  the  date. 

Q.  I  will  ask  you  whether  or  not,  on  the  evening  of  March 
12,  1902,  in  room  19  of  the  Weiser  IIoti>],  in  this  county  and 
State,  you  said  to  Mary  Phillips,  in  the  course  of  a  conversation 
had  Ik  tWTcn  you  and  Mary  Phillips  in  that  place  and  on  that 
occasion,  the  conversation  being  directed  to  the  question  of 
your  father's  guilt  or  innocence  upon  this  charge,  in  substance 
and  effect  as  follows :  '1  can't  go  against  my  father,  even  if  he 
is  guilty.'    Did  you  so  stated 

Mr.  Irwin:  We  object  to  that  question  as  immaterial,  irrele- 
vant, and  incompetent.  (Objection  overruled,  to  which  ruling 
of  the  court  counsid  for  defendant  excepts.) 

Q.   Did  you  so  state  in  substance  and  effect?     (Xo  answer.) 

Q.  Again  I  ask  you  whether  you  stated  in  substance  and  ef- 
fect— 1  will  repeat :  'I  cannot  go  against  my  father,  even  if  he 
is  guilty?'    A.    No,  sir;  I  did  not. 

Q.   Nothing  to  that  effect  ?    A.  No,  sir. 

Q.  Did  you  cry  there  on  that  occasion  in  talking  to  her  ?  A. 
No,  sir. 

Q.  You  didn't  cry  on  that  occasion  in  talking  to  her?  A. 
No,  sir.    She  was  there  for  the  information  she  didn't  get. 

Q.  You  was  playing  detective  again,  was  you  ?  A.  No,  sir ; 
I  was  not.    She  was. 


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AMERICAN  CRIMINAL  REPORTS. 


Q.  ITow  do  yon  know  slie  was  ?  A.  T  conld  tell  from  tlui  lii y 
of  thinjis  I'joni  atiirt  to  iinisli.  She  invited  nie  to  the  room.  1 
went  there, 

Q.  Did  she  siiy  on  that  oecasion  that  Hhe  thonght  yonr  father 
was  gnilty  ?  ' 

Air.  Irwin  :  We  ol)je('t  to  that  as  ine<impetent,  irrelevant.  an<l 
imnniterial,  an<]  as  hearsay.     (Ohjeetion  snslaincd.) 

Q.  Tiicu  yon  swear  jxisitively  that  yon  liad  no  snch  conversa- 
tion, in  sniistanee  and  elVeet,  as  that;  tliat  is,  the  conversation 
that  yon  liav(' (h'nied  ij    A.    Yes,  sir;  I  »h>." 

It  is  oonten<h'd  by  connsel  for  det'en<hint  that  th(!  qneslioiis 
here  asked  repeatedly  of  (h'f(Mi(hint's  son  tended  to  pn  jiidice 
the  snhstantial  rights  of  (h'feiKhmt  Ix'fore  the  jnry,  and  to  tlirow 
into  tlie  jury  box  the  insinnation  that  (lie  defendjint  had,  prior 
to  the  cdiinnission  of  the  act  allege<l,  eonnnitted  similar  olTeiises, 
and  that  his  c<indnct  in  that  respect  had  caused  the  death  of  tin- 
witness'  mother,  defendant's  wife,  and  that  the  witness  himself 
Ixilieved  in  llie  guilt  of  the  dtifeiidant,  and  that  he  had  stated 
as  much,  and  that  he  had  cried  and  wept  in  his  conversations 
with  others  over  the  conduct  of  his  father. 

We  ar(^  cite<l  to  a  great  many  autlmrities  discussing  the  con- 
duct of  prosecutors  and  rnlings  of  the  courts  upon  (pieslions 
very  similar  to  the  one  at  bar. 

in  the  case  of  People  v.  Wells,  100  ("al.  4r.!),  ;{ t  Tac.  I07H, 
McFarland,  ,].,  six-aking  for  th(;  court  in  <lisenssing  the  con<luct 
of  the  ])rosecntor  in  asking  the  (lefet\dant  on  cross-examination 
if  she  had  n(»t  committed  a  like  otfens('  in  another  State,  says: 
*'It  would  he  an  impeachment  of  the  legal  learning  of  the  coun- 
sel for  the  People  to  intitnate  that  he  did  not  know  the  (piestion 
to  1k'  improper  and  wholly  nnjustitiable.  Its  only  iiurpose, 
therefore,  was  to  get  bid'ore  the  jury  a  statement  in  the  guise 
of  a  question  thrt  would  prejudice  them  against  api)ellant.  Jf 
counsel  IiikI  no  reason  to  believe  the  truth  of  the  matter  insinu- 
ated by  the  tjuestion,  then  the  artifice  was  most  flagrant ;  but 
if  he  had  aiiv  reason  to  believe  in  its  truth,  still  he  knew  that 
it  was  a  matter  which  the  jury  had  no  right  to  consider.  The 
Prosecuting  Attorney  nniy  well  l)e  assumed  to  Ix-  a  nmn  of  fair 
standing  before  the  jury,  and  they  may  well  have  thought  that 
he  would  not  have  asked  the  question  unless  he  could  have 
proved  what  it  intimated  if  he  had  Ix'en  allowed  to  do  so. 
Where  the  clear  purpose  is  to  prejudice  the  jury 


*     * 


STATE  V.  IRWIN. 


(JLTJ 


n;,'iniiHl.  Ilic  (l('fcri(lMiit  in  n  vitnl  matter  hy  tlio  nicrf  nnkinj^^  df 
flic  »|iicHtioiis,  llifii  fi  jiKl^riiiciit  iipjiiiiist  llic  <lclVri(liiiit  will  l,(. 
rcvci-Hcd,  iiirli(.ii<ili  olijccli.iiiH  to  flic  (|iicsti(,iiH  were  Hiisl;iiii(d, 
iiiilcHH  it  iippcfirs  tlifit  III*!  (jiicslioiiK  could  not,  liavc!  iiiljiicnccl 
flic  vcniict." 

In  l'r,>i,lr  V.  n(iwcr.H,  V.)  Ciil.  4  ir»,  L' I  Tiic.  752,  tlic  (Icfcidjint 
v.'iis  |iro.-(cciit(<l  upon  llic  clnirf^c  of  niiinlcr.  The  Siipninc  Court 
(d'  Ciilirorniii,  in  discussing,'  IIk;  cohdiict  of  IIk'  |iroscciitor  in 
stiitin-^  nijitlcrH  m  tlic  presence  of  the  jury  whidi  were  not 
l>orne  out  hy  flic  rcc<,rd,  siiid:  "Still  more  ohjectir.iKil.le  avjih 
the  conduct  «d"  the  proscciitin;:'  Mttorney.  It  is  true,  the  court 
jiropcrly  interfered,  nhnkin^r  the  iittornry,  iind  iii<tnietiii^r  t||(; 
jury  to  piiy  no  jitfention  to  \Vv.  stjitcments,  I5nt  the  stnleineiil-t 
wern  Wfll  calcu'iit((l  to  inllncncr?  the  jury  in  ii  cfise  (d'  this 
clianictcr,  inni  it  is  inipossihie  for  us  to  sjiy  that  no  injury 
resuiti'd   to  the  (hdVndjiiit   therefrom." 

In  I'coiilc,  V.  Miilliiifjs.  s;;  dd.  |;;S,  2.'5  Pac  22!),  17  Ain. 
St,  Ucp.  22.'{,  flic  Pro-i cntinf^'  .\ttorncy  ad:ed  the  dcfrndant, 
\vliil(!  on  th.-!  wifijf  ss  rtand,  thr'  following'-  (|^c>tion-^:  ''What  did 
you  say  to  your  wife  when  yon  went  honie  that  nitiht  '.  I)id  veii 
not  tell  your  wife  that  you  had  killed  a  man  r'  'Ihe  defeiidiint, 
*)l)jccted  to  tli(  se  (pir'-tions,  and  the  ohjection  was  overnil'd. 
'I'lie,  Suprenie  Court  of  Califortua  in  discn-in^'  this  action  of 
tho  prosecutor  and  riilina'  of  the  court  say:  '"Connscl  for  re- 
Hj)ondent  eriiitends  that,  the  fpic-lions  asking  delmdant  ahoiil. 
Conversations  with  his  wife  did  not  injure  him,  hecause  his 
iinswcrs  to  tlieni  were  mostly  in  fh('  rieirativc.  iJiif. 
what  answers  were  e.xpeeted  '  After  drd'endant  te-tilied 
that  he  did  not  kill  dohn  .Moore,  ean  any  sane  man  think  that 
\\i(:  di-triet  attorney  -iippo.-(d  for  a  tiionicnt  that  defendant. 
Would  answer  allirmatively  a  lon;^  list,  of  fpiestions  frarnerl  upon 
the  presumption  that  he  did  kill  liirn  ^  W'.y,  then,  did  he  a' 
fiicni  i  And,  if  th(;  <pie^tions  and  answers  did  not  !kI|)  to 
stretifrth(;n  the  case  a^^ainst  drdVindant,  why  did  not,  tic; 
jifo-eentioii  consent  to  have  fhom  stricken  out  i  It  is  quite 
(vident  that  thf;  (pie.-tion-,  and  not  the  ari-.wer.-,  n'ere  v.hat  tlif; 
prosecution  thfiu^dit  iniportaiit.  Thf-  {)urposr:  of  the  (pii-tion- 
(dearly  was  to  keep  per-i-fently  Ijeforc'  tdie  jury  tiie  ff^-uinpfi''  ri 
of  dama^Miig  fact-  which  cfjiild  not  he  proven,  and  thu-  iiiipre~s 
iijion  ilieir  minds  the  prohahility  of  the  e.xi-tence  of  the  a--unied 
fact:j  upon  wliicli  the  (piestions  were  hase<l.     To  say  that  -ueh 

Vol.  XIII — 10 


H 


I 


ii 


'.  I 


if 


;*  I  r 

>  i 


^>    4 


I     -  I 


ill 


n  1 


M^' 


i  ■  !  !•■} 


626 


AMERICAN  CRIMINAL  REPORTS. 


a  course  would  not  be  prejudicial  to  defendant  is  to  ignore 
human  exporience  and  the  dictates  of  common  sense." 

The  case  of  Leahy  v.  The  State,  31  Neb.  500,  48  N.  W.  8i)(». 
was  a  rape  case,  and  in  many  particulars  similar  to  the  one 
at  bar.  There  the  Prosecutor,  upon  cross-examination  of  the 
accused,  asked  him  "if  on  the  day  sncceedinj?  that  on  n-hich 
it  was  alleged  he  committed  the  crime  he  did  not  go  o  the 
residence  of  one  B.,  and  there,  finding  Miss  B.,  daughter  of  B., 
alone,  did  not  attempt  to  drag  her  to  the  lounge,"  etc.,  and  then 
said  to  the  court  in  the  presence  of  the  jury,  "We  intend  to 
follow  this  matter  up,  and  show  that  ho  went  right  over  to  B.'s, 
and  there  tried  to  kiss  and  hug  ^liss  B.,  and  drag  her  to  the 
lounge."  The  Supreme  Court  of  Nebraska,  in  connnenting 
upon  this  conduct  of  the  Prosecutor,  say:  "It  is  the  duty  of  the 
officer  prosecuting  to  conduct  the  trial  of  a  criminal  case  accord- 
ing to  the  established  ru^es.  lie  acts  in  a  semi-judicial  capacity, 
and  is  sujiposed  to  act  alone  from  principle,  and  witliout  bias 
or  ])njudice.  The  State  has  guaranteed  to  every  one  a  fair 
trial,  and  such  trial  cannot  Ik*  had  if  the  prosecution  can  resort 
to  tricks  to  secure  a  conviction.  If  such  practice  was  sanc- 
tioned, it  would  result  in  many  cases  in  the  conviction  of  inno- 
cent persons.  The  plaintiff  in  error  wfls  on  trial  for  the  crime 
charged  in  the  infornu\tion.  So  far  as  appears,  ho  had  not  been 
charged  with  any  other  offense,  and  certainly  was  not  on  trial 
for  the  second.  The  statements  of  the  attorney  were  improper, 
and  in  the  highest  degree  prejudicial,  and  f<ir  those  causes  the 
judgment  is  reversed,  an.     he  cause  remanded  for  a  new  trial." 

In  Stnitk  V.  People  (Colo.  Sup.)  8  Pae.  1)20,  the  defendant 
was  chai'ged  with  the  crime  of  receiving  stolen  pr()])erty.  The 
Prosecutor,  in  the  course  of  his  arginnent,  staled  "that  he  had 
('xp(eted  to  prove,  as  stated  in  his  opening,  that  the  defendant 
liad  murdered  Alolly  Gorman."  The  Suprenu'  Court  of  Coln- 
rad(»,  in  discussing  this  action  of  the  Prosecutor,  said:  "The 
Action  of  the  prosecuting  official,  as  above  set  forth  in  the  record, 
constitutes  gnxss  misconduct  on  his  part^  and  a  total  disregard 
of  tlie  legal  rights  of  the  prisoner.  It  manifests  a  disposition 
to  ignore  the  plainest  principles  of  law  in  relation  to  the  trial 
of  criminal  offenses,  and  exhibits  contempt  for  the  authoritv 
and  dignity  of  the  court  of  which  he  was  theii  an  officer.  Such 
statements,  coming  from  the  acting  District  Attorney  at  the 
time  and  in  the  manner  made,  must  have  been  highly  preju- 


STATE  V.  IRWIN. 


G27 


(licial  to  the  cause,  of  the  defondaut.  Thoy  were  not  only  made 
hy  an  officer  of  the  court,  but  thoy  were  made  in  the  closing 
or  last  speech  to  the  jury,  when  there  was  no  opportunity  for 
defendant's  counsel  to  criticise  or  answer  them.  No  such  facts 
liad  been  received  in  evidence,  and  they  were  not  only  wholly 
outside  the  evidence,  but  totally  irrelevant  to  the  subject-matter 
of  the  trial.  The  officer  could  have  had  but  one  motive  in  view 
ill  the  course  pursued  by  him,  viz.,  to  prejudice  the  jury 
against  the  prisoner  by  charging  her  Avith  the  commission  of 
graver  crimes  than  the  offense  for  which  she  was  being  tried." 

In  Ilokler  v.  Slate  (Ark.)  25  S,  W.  279,  the  defendant 
was  prosecuted  on  the  charge  of  murder,  and  in  the  course  of 
his  cross-examination  the  prosecute )r  asked  him,  among  other 
things,  *'Ia  it  not  a  fact  that  you  had  connnitted  ra])e  in  Texas, 
and  left  there  for  that  reason  C  Battle,  J.,  speaking  for  the 
ciiurt,  concerning  this  question,  says:  "The  action  of  the  at- 
torney for  the  State  was  highly  reprehensible.  A  Prosecuting 
Atiurnej  is  a  public  ofhcer,  'acting  in  a  <piasi  judicial  capacity.' 
It  is  liis  duty  to  use  all  fair,  honorable,  reasonable,  and  lawful 
means  to  secure  the  conviction  of  the  guilty  who  are  or  nniy  be 
indicted  in  the  courts  of  his  ju<licial  circuit.  lie  should  sev3 
that  they  have  a  fair  and  impartial  trial,  and  avoid  convictions 
contrary  to  law.  Nothing  shouhl  tempt  him  to  appeal  to  pveju- 
(liccr,  to  pervert  the  testimony,  or  make  statements  to  the  jury, 
v.hicli,  whether  true  or  not,  have  not  lx>en  proved.  The  desire 
f(ir  success  should  never  induce  him  to  endeavor  to  obtain  a 
verdict  by  arguments  based  on  anything  except  the  evidence 
in  the  case,  and  the  conclusions  legitimately  deducible  from 
th(>  law  applicable  to  the  same.  To  convict  and  punish  a  person 
through  the  influence  of  prejudice  or  caprice  is  as  pernicious 
in  its  consequences  as  the  escape  of  a  guilty  man.  The  forms 
of  law  should  never  be  prostituted  to  such  a  purpose." 

The  jVIissouri  Court  of  Appeals,  in  the  case  of  State  v.  Trott, 
?>C)  Mo.  App.  29, — a  gambling  case, — in  discussing  the  conduct 
of  the  piosecutor  in  cross-examining  the  accused,  and  asking 
him  if  he  had  not  played  cards  for  money  before,  said:  "The 
question  thus  put  to  the  witness  by  the  State's  attorney  was 
not  only  not  pertinent  to  the  witness'  direct  examination  or  to 
tl.e  issues,  but  it  was  inadmissible  as  evidence  against  him 
on  any  theory,  and  it  thrust  into  the  minds  of  the  jurors  an 


f  I  f 


■i  i 


p 


fl 


I  ■ 


m 


ili:;: 


628 


AMERICAN  CRIMINAL  REPORTS. 


imi 


irrolevant  matter,   •which  was  highly  prejudicial   to  the   no- 
cuscd." 

In  the  case  of  the  People  v.  Cahoon,  88  ^Mich.  456,  50  X. 
W.  384,  the  court,  iu  coninientiug  u]ion  the  action  of  the  Prose- 
cutor in  making  remarks  in  the  presence  of  the  jury  as  to  tlio 
purpose  of  the  evidence  he  was  o^foring,  said :  *'Zeal  in  a  Prose- 
cuting Attorney  is  entitled  tx)  the  highest  commendation,  l)iit 
that  zeal  must  be  exercised  within  proper  limits.  *  *  *  Jn 
criminal  cases  the  prosecuting  attorney  is  a  public  officer,  acting 
in  a  quasi  judicial  capacity.  Juries  very  properly  regard  him 
as  unpi'ejudieed,  impartial,  and  non-partisan ;  and  insinuations 
thrown  out  by  him  regarding  the  credibility  of  witnesses  fdi* 
the  defense  arc  calculated  to  prejudice  the  defendant."  To 
the  same  effeet,  see  Gale  v.  People,  20  ^Mich.  156;  People  v. 
Dcvine,  1)5  Cal.  231,  30  Pae.  378;  People  v.  Lee  Chuck,  78 
Cal.  327,  20  Pae.  1\Si;  People  v.  Ah  Len,  92  Cal  282,  28  Pac. 
28(5,  27  Am.  St.  Rep.  103. 

It  will  bo  observed  from  the  foregoing  authorities  that  the 
courts  do  not  look  with  favor  u]X)n  the  action  of  prosecutors 
in  going  beyond  any  possible  state  of  facts  which  can  be  ma- 
terial as  to  the  guilt  or  innocence  of  the  defendant  iu  a  particular 
case  for  which  ho  is  ujion  trial.  Prosecutors  too  often  forget 
that  they  arc  a  part  of  the  machinery  of  the  court,  and  that 
they  occupy  an  oliicial  position,  which  necessarily  leads  jurors 
to  give  more  credence  to  their  statements,  action,  and  conduct 
in  the  course  of  the  trial  and  in  the  presence  of  the  jury  than. 
they  will  give  to  counsel  for  the  accused.  It  seems  that  they 
frecpiently  exert  their  skill  and  ingenuity  to  see  how  far  tliey 
can  trespass  upon  tho  verge  of  error,  and  generally  in  so  doing 
they  transgress  upon  the  rights  of  the  accused.  It  is  the 
duty  of  the  prosecutor  to  see  that  a  defendant  has  a  fair  trial, 
and  that  nothing  but  amipetcnt  evidence  is  submitted  to  tiio 
jury,  and  above  all  things  he  should  guard  against  anything 
that  would  prejudice  the  luinds  of  the  jurors,  and  tend  to 
hinder  them  from  considering  only  the  evidence  introduced. 
When  he  has  submitted  all  the  facts  in  the  ease  to  the  jury  ho 
should  be  content,  but  he  should  never  seek  by  any  artifice  to 
warp  the  minds  of  the  jui'ors  by  inferences  and  insinuations. 
In  the  case  at  bar  it  is  apparent  at  once  that  the  questions  of 
the  S])ccial  Prosecutor  were  calculated  to  prejudice  the  jury, 
aud  lead  them  to  believe  that  tho  defendant  who  was  then  on 


the 


STATE  V.  IRWIN. 


029 


trial  wns  a  bad  and  dangcvona  man  in  a  commnnity,  and  that 
he  iiad  been  gnilty  of  a  siniihir  otTense  prior  to  the  one  alleged, 
and  that  his  eonduet  with  other  young  girls  liad  brought  about 
the  death  of  his  own  wife;  and  this  was  bought  to  be  made 
more  forcible  by  asking  the  defenihmt's  son  if  he  had  not 
nuido  stu'h  statement  himself — faets  which  were  wholly  for- 
eijiu  to  the  case  upon  trial.  It  could  not  bo  material  in  any 
view  of  the  case.  It  was  not  proper  cross-examination,  and 
upon  no  view  or  theory  of  the  case  was  it  admissible.  In  this 
case  the  objection  to  one  of  the  questions  was  sustained,  but 
counsel  continued  to  ask  practically  the  same  question.  The 
defendant's  attorney  objected  to  the  conduct  of  the  counsel,  and 
iinally  the  court  overruled  the  objection  of  defendant's  counsel 
to  a  very  similar  (juestion,  as  will  be  seen  from  the  portion 
(if  the  record  quoted.  From  this  ruling  of  the  court  the  jury 
had  a  right  to  Ixdieve  that  the  evidence  was  competent  for 
ibeiu  to  consider. 

Another  thing  which  appears  in  this  case,  and  makes  the 
(>rrov  more  ])rejudicial  to  the  rights  of  defendant,  is  the  fact 
that  the  evidence  was  of  the  most  conflicting  an<l  unsatisfactory 
character;  so  much  so  that  we  cannot  doubt  that  the  conduct 
of  counsel  and  the  incompetent  evidence  admitted  did  actually 
prejudice  defendant. 

It  is  urged  by  the  Attorney  General  that  an  exception  to  the 
acti(»n  of  the  assistant  prosecutor  and  the  rulings  of 
the  conrt  was  not  properly  saved.  We  are  uiud)le 
to  agree  with  this  contention.  The  record  above  quoted 
shows  that  defendant's  couns(d  twice  objected  to  the 
(piestions,  and  once  took  exception  to  the  action  of  coimsel  for 
the  State  in  persisting  in  substantially  repeating  the  question. 
Attorneys  should  be  careful  in  nuikiug  their  objections  and 
saving  their  exceptions,  but  we  think  they  have  sufficiently 
done  so  in  this  case. 

After  the  defendant  had  rested  his  case,  the  State  examined 
the  witness  Alary  Phillips  in  rebuttal,  and  asked  her  if  she 
had  had  such  a  conversation  with  the  witness  Daniel  Irwin 
as  had  been  set  forth  in  the  question  asked  of  Irwin,  and  she 
answered  in  the  affirmative.  The  defendant  assigns  the  admis- 
sion of  this  evidence  as  error.  The  record,  however,  does  not 
show  any  objection  made  to  the  question,  but  it  is  well  enough 
here  to  observe  that  the  evidence  was  clearly  inadmissible  as 


!  'I  'f 


\ 


I  I 


'I-  ;< 


I 

I 


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'C 


'i  ^ii' 


II    I 


•1:  ', 


:;■! 


It 


II: 


11 

i 

i 


^mAm 


680 


AMERICAN  CRIMINAL  REPORTS. 


I  ..I 


against  the  defendant,  and  the  fact  that  it  was  given  niiKr 
the  guise  of  inipeachniont  of  the  witness  Daniel  Irwin  did  imt 
make  it  competent. 

The  judgment  of  the  District  Court  is  reversed,  and  cause 
remanded. 

SullivAaV,  C.  J.,  and  Stockslaoek,  J.,  concur. 


!1S         <        1 


Pkoplk  v.  Gotsiiall. 

123  Mich.  474—82  N.  W.  Rep.  274. 

Decided  April  27,  1900. 

Trial:  A  remarkahle  instance  of  unrchvkcd,  reflrehensihlc  conduct 
of  a  prosecuting  attorney  in  cross-examination  of  the  accused 
and  other  witnesses — Arson — Motive — Identification — Remote  tes- 
timony— Trifling  and  uncertainty  in  testimony — Duty  of  prose- 
cuting attorney — Duty  of  the  presiding  judge — Unfair  trial. 

1.  Testimony  which  is  not  entirely  Insufficient,  but  which  is  very  un- 

satisfactory, leads  to  a  careful  examination  of  the  errors  as- 
sign ed. 

2.  Testimony  of  witnesses  that  they  met  accused  at  so  great  a  dis- 

tance from  the  locality  of  the  flre  charged,  that  it  would  have 
required  great  speed  upon  his  part  to  have  been  present;  and  of 
a  witness  who  identified  accused  simply  by  some  article  of  ap- 
parel, is  unsatisfactory  evidence. 

3.  Where  the  size  and  height  of  the  accused  Is  such,  that  it  would 

attract  no  more  than  ordinary  attention,  on  a  street  frequented  by 
many  persons,  it  is  not  proper  to  show,  that  in  the  dusk  of  even- 
ing or  on  a  lighted  street,  the  witness  saw  a  man  about  the  size 
and  height  of  the  accused. 

4.  In  order  to  prove  that  the  accused,  who  was  about  seventy  years 

of  age  and  in  poor  health,  could  have  been  present  at  the  alleged 
flre,  the  Court  permitted  two  active  young  men  to  testify  as  to  tlie 
time  by  them  occupied  in  traveling  a  certain  distance — held  mani- 
fest error. 

5.  Insinuating  cross-examination  of  several  of  the  accused's  witnesses 

reviewed,  and  held  to  be  prejudicial  error. 

6.  It  was  improper,  and  it  was  reversible  error,  for  the  prosecuting 

attorney,  in  the  presence  of  the  jury,  to  comment  on  the  absence 
of  a  witness,  and  to  remarlc  that  the  witness  had  been  sub|)oe- 
naed,  but  that  neighbors  had  not  seen  her  on  the  day  of  the  trial, 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


ivcn  iiii.Ki- 
'in  did  11,4 

and  causo 


lie  conduct 
he  avcusc.il 
'iemote  ten- 
/  of  prusc- 
trial. 

Is  very  im- 
errors   as- 

reat  a  dis- 
'oiild  liave 
nt;  ami  of 
Icle  of  ap- 

:  it  would 
luentod  by 
k  of  even- 
it  the  size 

nty  years 

tie  alleged 

as  to  tiio 

leld  nuiui- 

witncsses 

osecuting 
i  absence 
1  sub])oe- 
tlie  trial, 

ropics  la 


PEOPLE  V.  GOTSHALL. 


631 


and  that  he  would  lllte  to  know  who  was  "dragging  the  witness 
away." 

7.  Cross-examination   of   accused    as   to   whether   accused   had    in   a 

distant  locality  and  many  years  previously  been  threatened  with 
prosecution  for  arson;  why  accused  left  such  locality,  elc,  were 
both  remote  and  prejudicial. 

8.  It  was  highly  improper,  and  was  reversible  error,  for  the  i)rose- 

cuting  attorney,  with  the  manifest  purpose  of  i)rejudlcing  the 
jury  against  the  accused,  to  cross-examine  him  as  to  whether  he 
was  connected  with  many  other  supposed  incendiary  fires. 

9.  "When  it  is  manifest  that  the  design  or  effect  of  the  questions  is 

not  to  illicit  facts,  but  to  cast  suspicions  upon  the  character  and 
credibility  of  the  witness,  Courts  must  intervene,  or  trials  will 
result  in  a  miscarriage  of  justice." 

10.  It  does  not  rise  to  the  dignity  of  evidence,  for  a  witness  to  testify, 

that  he  had  an  impression  that  he  had  a  conversation  with  the 
accused,  regarding  Insurance  on  the  property  burned. 

11.  The  accused  being  a  very  unpopular  man,  it  was  the  special  duty 

of  the  prosecuting  attorney  to  secure  to  the  accused  a  fair  trial. 

12.  It  was  tlie  duty  of  the  trial   judge  to  prevent  improi)er  attacks 

upon  the  accused. 

13.  A  fair  trial,  as  guaranteed  by  the  Constitution,  not  being  given 

the  accused,  the  conviction  is  set  aside. 

Error  to  Circuit  Court,  Gcncsec  (,'ounty;  lion.  Charles  11. 
Wisnor,  Judge. 

John  II.  Gotshall,  convicted  of  arson,  bring.s  error,  llo- 
verscd. 

Kcsjjondent,  who  is  nearly  70  years  of  age,  was  convicted 
of  the  crime  of  ar.son,  and  sentenced  to  the  penitentiavv  for 
10  ;)ears.  He  had  lived  in  the  city  and  town  of  Flint  for  32 
years.  lie  was  a  merchant.  The  property  destroyed  was  a 
barn,  its  contents,  and  strawstacks  around  it,  belonging  t<t  Lee 
&  Aitken,  lawyers,  residing  in  the  city  of  Flint.  Kespoiidcnt 
also  resided  in  the  city.  Ilis  home  avs..s  2%  miles  ivmw  the 
burned  buildings,  and  '  ,s  store  2  miles.  The  fire  occuircd 
September  30th,  and  wj.  5  discovered  about  7:30  p.  m.  An 
auction  was  held  at  the  farm  that  day,  the  sale  closing  about 
5  o'clock.  The  articles  sold  were  across  the  road  from  the 
barn,  and  about  30  rods  distant.  Horses  were  tied  amund  the 
barn,  and  people  went  in  and  around  it  during  the  day.  The 
weather  was  hot,  and  it  was  very  dry.  Respondeiit  was  ill, 
and  under  the  care  of  a  physician,  who  advised  him  not  to 
attend  the  sale.  He,  however,  rode  there  with  a  neighbor, 
bought  a  few  articles,  and  returned  home  about  5  o'clock.    The 


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632 


AMERICAN  CRIMINAL  REPORTS. 


( 


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pi'Dptrty  was  insured  in  the  Gcneseo  Furnicrs'  Mutual  Fire  In- 
surance Company,  of  which  respondent  had  onee  heen  a  meui- 
ber.  lie  hail  difKeulty  with  the  company,  witlidrew  from  ii, 
and  litigation  arose  bttween  theui.  In  lliis  litigation  ^Ir.  Lie 
was  one  of  the  attorneys  for  the  company,  and  in  his  argument 
had  severely  criticised  respondent.  There  was  the  usual  amount 
of  smoking  by  those  attending  the  sale.  There  was  testimony 
of  threats  made  by  the  respondent  against  the  comi)any.  The 
buildings  were  sitiuited  east,  of  the  city.  The  street — Kearslcy 
street — by  which  they  were  reached  was  one  of  the  princijial 
thoroughfares  leading  in  and  out  of  the  city. 

(Jeer  cO  WUflamSj  for  appellant. 

Fred  W.  Bnnnan,  Prosecuting  Attorney,  for  the  Pe(»ple. 

Gi!ANT,  J.  (after  stating  the  facts).  1.  It  is  the  theory 
of  the  ])rosecution  that  respondent,  after  returning  from  the 
sale,  and  after  the  hour  of  OiJJO,  walked  to  the  barn,  set  tire 
to  if,  and  returned  to  his  home  ah)ng  the  public  highway  and 
streets  of  the  city.  The  claimed  motive  for  the  crime  is  his 
animosity  against  the  insurance  comj)any  and  ^Ir.  Lee.  It  is 
strenuously  urged  by  counsel  for  the  respondent  that  the  prose- 
cution failed  to  establish  the  crime,  and  that  the  court  should 
have  directed  an  acipiittal.  The  ease  for  the  prosecutioti  rests 
entirely  ujM)n  the  t(  stimony  claimed  to  show  that  the  res))ondent 
was  seen  going  east  on  Kiarsley  street,  towards  the  liiiiltlings, 
about  (l:JJ(),  and  about  three  blocks  from  Saginaw  street,  and 
that  aliout  the  time  the  fire  broke  out  he  was  seen  going  west 
on  Kearsley  street  and  on  Court  street,  which  runs  |)arallel  to 
Kearsley.  The  witness  who  tcstiiied  to  nuH'ting  him  going 
east  said :  "It  was  not  dark.  It  was  b(  tween  siui- 
down  and  dark."  The  streets  had  not  been  lighted. 
The  witness  did  not  see  his  face,  arul  could,  therefore,  only 
recognize  him  by  his  clothes.  He  does  not,  however,  state  by 
what  means  he  recognized  him  other  than  to  tell  how  he  was 
dressed.  He  said  his  clothes  were  dark.  He  could  not  tell 
whether  his  coat  was  long  or  short.  Didn't  pay  attention 
enough  to  know  whether  it  was  an  overcoat  or  a  sack  coat.  He 
further  testified,  "I  have  seen  him  wear  the  hat  freipu'utly.'' 
This  is  all  the  testimony  the  witness  gave  in  support  of  his 
identification.     The  place  where  this  witness  testified  to  meet- 


m^m 


PEOPLE  V.  OOTSHALL. 


688 


'■ 


Wiis 


iii^  respondent  wna  at  lonst  two  milos  fmni  the  firo.  Two  otlior 
witncHscs  testify  to  nict'tiiig  rospoiiilciit  on  Court  .street,  on 
the  wi'st  side  of  Gilky  creek,  going  west  into  the  city  at  ii  point 
nearly  two  niilcn  from  tiio  tire.  Tlieir  testimony  as  to  tlu 
identification  is  not  veyy  satisfactory.  Tiio  jjrosecutioii  also 
nave  testimony  of  a  nuui  coming  west  on  Kearsley  street  near 
(jilky  creek,  who,  it  is  ehiimed,  was  respondent.  Two  wit- 
nesses testify  to  meeting  this  nuiii,  and  tiuit  he  was  ahout  tho 
same  size  as  respoiuh'iit.  'Jhey  saw  tho  lire  at  ahout  the  same 
lime  as  did  tiio  witnesses  who  went  out  ("«<nrt  s'reet,  ojie  of 
whom  went  on  a  bicych'.  Tlie  witnesses  on  Kearsh\v  street  Inul 
a  liorse  and  hnggy.  If  the  jierson  "vu  on  Iveiirsley  street  was 
the  same  man  who  was  seen  on  Court  street,  lie  must  have 
traveled  that  distance — nearly  or  quite  .", (>()()  feet — in  an  al- 
most incredibly  short  space  of  time.  Although  this  testimony 
of  identification  is  very  unsatisfactory,  we  do  not  think  that 
we  can  hold  that  there  was  no  evidence  for  the  jury  to  act 
upon.  Tiie  verdict,  however,  based  upon  th.is  testimony,  leads 
to  a  careful  examination  of  the  errors  assigned. 

2.  Several  witnesses  were  permitted  to  testify  that  they  met 
a  man  on  Kearsley  and  Ccnirt  streets,  none  of  whom  ])hu'ed 
him  within  a  mile  of  the  lire,  and  that  he  was  ahout  the  lieight 
and  size  of  respondent.  This  was  allowed  to  go  to  the  jury 
as  evidence  that  resptjiident  was  seen  going  towards  this  farm 
before  the  fire,  and  retuvning  from  it  after,  and  thus  justify 
the  conclusion  that  he  set  the  fire.  The  valne  of  such  testimony 
will  be  seen  from  the  cross-examination  of  one  of  the  witnesses: 

"Q.    How  did  the  man  compare  with  your  size  i 

A.    .lust  about  my  size. 

Q.   How  would  he  compare  witli  j\[r.  Brennan  as  to  size? 

A.    I  suppose  pretty  near  the  size. 

Q.    Yon  know  100  men  ahout  that  size? 

A.    Yes,  sir. 

Q.    So  there  was  nothing  uncommon  about  his  size? 

A.    Not  particularly." 

To  casual  observers,  unless  one  is  so  much  above  or  below 
the  ordinary  height  or  size  of  men  as  to  attract  attention,  per- 
sons, when  seen  at  dusk,  or  in  the  evening,  or  In  the  light  of 
electric  lamps,  would  appear  about  the  same  size  and  height. 
When  there  are  hundreds  of  others  in  the  same  community  of 
about  the  same  height  and  size  as  the  person  upon  trial  charged 


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634 


AMERICAN  CRIMINAL  REPORTS. 


with  a  heinous  crime,  it  is  not  comiietent  to  introduce,  as  af- 
firmative evidence  of  identification,  testimony  of  witnesses  that 
thej  met  a  man  in  the  public  highway,  in  the  evening,  fruni 
one  to  two  miles  from  the  locus  of  the  crime,  of  about  the  same 
size  and  height  as  the  refipondent.  Such  testimony  is  merely 
tho  expression  of  an  opinion  based  upon  the  most  casual  ob- 
servation, and  cannot  be  used  to  form  one  of  the  important  and 
necessary  links  to  convict  a  person  of  crime. 

3.  Two  active  young  men,  at  the  instance  of  the  prosecution, 
started  from  a  point  in  Koarsley  street,  where  the  witness  testi- 
fied he  met  respondent  on  the  night  of  the  fire,  walked  thence 
to  the  place  of  the  fire,  and  back  to  resjmndcnt's  home,  and 
were  allowed  to  testify  that  they  made  the  trip  in  one  hour 
and  ten  minutes.  This  was  over  the  course  it  was  claimed  re- 
spondent took.  This  testimony  was  ofi'ered  for  the  pur])()se  ot" 
convincing  the  jury  that  respondent  eould  have  made  this  trip, 
entered  and  fired  the  barn,  and  returned  home  in  the  sani(> 
time,  or  a  few  minutes  longer.  The  injustice  of  this  procedure 
is  manifest.  Had  the  prosecution  selected  two  men  of  the  age 
and  condition  of  respondent,  there  would  have  been  a  show  of 
propriety  and  fairness.  There  is  no  logic  in  the  argument 
that,  because  these  young  men  walked  or  ran  fi  jm  fonr  to  four 
and  a  half  miles  in  an  hour  and  ten  minutes,  therefore  this 
old  nan,  wlio  was  ill,  accoini)lished  the  same  feat. 

4.  Dr.  liowland,  a  j)hysician  of  28  years'  practice  in  Flint, 
testified  that  he  had  been  treating  respondent  for  a  month  or 
more  for  a  trouble  of  the  bladder;  that  he  had  treated  him  that 
morning  before  he  went  to  the  sale,  giving  him  medicine,  and 
washing  out  his  bladder;  that  he  had  urged  him  not  to  attend 
the  sale;  that  he  was  in  the  respondent's  store  that  evening, 
when  they  were  closing  up,  at  (J  :2i)  or  6 :30  o'clock,  and  saw 
the  respondent  there;  that  within  lialf  an  hour,  or  perhaps  a 
little  longer,  thereafter,  he  saw  the  fire,  and  that,  in  his  opinittn, 
respondent  was  physically  incapable  of  walking  to  the  place 
of  the  fire  and  back  within  the  tinte  claimed  by  the  prosecution. 
On  cross-examination  he  was  asked  how  many  times  he  had 
been  a  witness  for  respondent,  to  which  he  replied,  "Once." 
The  prosecuting  attorney  then  continued: 

"Q.    Is  this  the  only  case  you  have  been  a   witness   for 
him  in  ? 
A.   Yes,  sir. 


'C. 


PEOPLE  V.  GOTSHALL. 


Cfi. 


•>R. 


Q.   Do  you  recollect  the  trial  of  tlic  other  case  in  which  he 
was  charged  with  the  fire,  over  in  Burton  ?    Were  you  not  a 
witneso  for  him  then  ? 
A.    No,  sir." 

A  similar  course  of  cross-examination  was  pursued  with  an- 
other witness  for  the  respondent  named  Kelly. 

One  Mrs.  Sweet,  a  witness  for  respondent,  was  fm-niorly  a 
Mrs.  Cliase,  residing  in  iho  State  of  Xew  York.  On  cross- 
examination  she  testified  that  her  husband  got  a  divorce  fnjiu 
her  in  New  York.  Tlie  prosecutor  then  asked  her,  '"Don't  you 
know  that  they  cannot  get  a  divorce  in  Xew  York  on  any 
ground  except  adultery?"  Objection  to  this  question  was  sus- 
tained. 

One  Boomer  was  cross-examined  by  the  prosecuting  attorney 
as  follows: 

"Q.    Did  you  ever  attempt  to  hang  yourself  ? 

A.   Xo,  sir. 

Q.  And  then  didn't  you  go  back  in  the  house,  and  whip  your 
wife,  because  she  wouldn't  cut  you  down  ? 

A.   Xo,  sir. 

•Q.    You  never  whipped  your  wife? 

A.   Xo,  sir. 

Q.  You  have  never  been  threatened  with  arrest  for  beating 
your  wife  ? 

A.    X^o,  sir. 

Q.  Wasn't  that  canvassed  at  the  time  you  were  n])p(unted 
night  watch  on  the  street,  and  they  didn't  want  to  appoint  you 
because  you  were  a  wife  beater  ? 

A.   Xo,  sir. 

Q.   1  )o  you  swear  that  is  true  ? 

A.    I  never  heard  of  it  before. 

Q.    You  never  beat  your  ^'ife,  did  you  ? 

A.   Xo,  sir. 

Q.   You  never  did? 

A.   X\>,  sir. 

Q.  Do  you  swear  that  they  didn't  talk  about  that,  and  raise 
that  as  an  objection  against  you  ? 

A.   I  never  heard  it  mentioned  before." 

\Y  thmk  the  attempt  to  throw  discredit  upon  these  witnesses 
by  the  cross-examination  was  unjustifiable. 

It  is  impossible  to  read  this  record  without  reaching  the 


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636 


AMERICAN  CRIMINAL  REPORTS. 


conclusion  that  the  respondent  was  a  very  unpopular  man,  and 
that  there  was  great  feeling  and  prejudice  in  the  conuuunit_y 
against  him.  Under  these  circumstances  it  was  the  special 
duty  of  the  prosecuting  attorney  to  see  that  the  respondent  had 
a  fair  trial,  and  not  to  introduce  in  evidence  matters  which 
would  permit  the  jury  to  entertain  an  imjust  suspicion  of 
the  character  and  truthfulness  of  the  witnesses. 

It  was,  moreover,  the  duty  of  the  judge  to  restrain  these 
attacks,    liickahus  v.  Gait,  .51  :Mich.  227,  10  N.  W.  384. 

Another  incident  occurred  in  the  course  of  the  trial  which 
illustrates  the  method  pursued  by  the  prosecution  in  order  to 
cast  suspicion  ujwn  the  defense. 

One  ^liss  Bumps,  wIkmi  called  as  a  Avitness  by  the  prosecut- 
ing attorney,  did  not  respond,  whereu])on  the  assistant  prose- 
cuting attorney  arose,  and  said,  in  the  jjreseuce  of  the  jury: 
''I  have  been  informed  by  the  neighbors  up  there  that  ^liss 
Bumjis  has  not  l)een  seen  by  the  neighbors  today.  She  has 
been  subpoenaed,  and  we  have  sent  a  hack  after  her.  T  do  not 
know  who  it  is  that  is  dragging  these  witnesses  away." 

There  was  no  foundation  for  any  such  statement.  It  amount- 
ed to  a  direct  charge  that  the  resiumdent  was  trying  to  (tbstruet 
the  course  of  justice  by  keeping  the  witnesses  for  the  prosecu- 
tion from  attendance. 

5.  The  respondent  was  a  witness  in  his  own  behalf.  On 
his  cross-examination  the  following  questions  were  asked  under 
objection  and  exception: 

''Q.  Where  did  you  live  previous  to  coming  to  Genesee 
county  ? 

A.    Pennsylvania, — Oil  City. 

Q.  How  long  had  you  lived  at  Oil  City  Ix^fore  you  came 
here  ? 

A.  I  don't  just  remember;  say  four  years;  possibly  maybe 
five. 

Q.    What  was  your  business  there  'i 

A.    I  was  engaged  as  a  merchant. 

Q.    What  business  i 

A.  As  a  mereliant,  wlmlesale  and  retail, — flour  and  feed, 
groceries  and  provisions,  and  crockery  store.  1  had  three 
stores  at  that  time. 

Q.    Why  did  }ou  leave  there,  and  come  to  Michigan  \ 

A.    Why? 


PEOPLE  V.  GOTSHALL. 


637 


nn,  and 
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s])eeial 
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wliic'Ji 
'ion  of 


Q.  Yes. 

A.  I  came  to  change  away  from  Oil  City,  and  I  came  here 
to  buy  a  home  in  the  country. 

Q. '  Why  ? 

A.  1  was  tired  of  the  country,  and  I  had  traveled  south  a 
thousand  miles  to  find  a  home  before  I  came  here. 

Q.  Were  you  threatened  with  arrest  for  any  fires  there  at 
that  time  ? 

A.    No,  sir. 

Q.    You  didn't  leave  there  because  of  any  fires  ? 

A.    -No,  sir. 

Q.   Had  you  a  fire  there  ? 

A.  Not  personally;  only  as  the  city  l)iirnod  up.  On  the 
2()th  of  May,  1S,S<5,  we  had  a  five  there  that  burned  the  city  up. 

Q.    Where  did  the  fire  start? 

A.    In  the  old  Widow  Sullivan's  shanty. 

Q.    11  (iw  far  from  your  premises? 

A.  I  should  say  the  distance  was  in  the  neighborhood  of  a 
quarter  of  a  mile  southeast,  I  think. 

Q.  J)o  you  remember  who  was  accused  of  starting  that  fire 
there  at  Oil  City? 

A.  We  knew  all  about  it.  It  was  right  in  the  daytime  it 
commenced,  and  it  conmienced  in  the  old  Widow  Sullivan^s 
shanty,  Ix'cause  of  the  use  of  petroleum. 

Q.  Do  you  know  who  was  accused  of  setting  the  fire  at  that 
time,  just  before  you  left  there? 

A.  Xo,  sir;  I  never  heard  of  anybody.  I  soon  went  back 
there. 

Q.  Xow  you  may  state  v  hether  or  not  you  Avcre  accused  of 
bnrninif  the  Xesk'tt  barn.  Were  vou  not  accused  of  burniim' 
the  Adams  barn  <  Did  you  not  burn  Adams'  barn?  Did  you 
not  burn  Nesbett's  barn?  Did  you  not  burn  Dr.  Miller's 
barn  ^  Did  you  burn  Damon  Stewart's  barn?  Did  you  burn 
Pierson's  barn?  Did  you  burn  Benson's  barn,  ilat  Davidson's 
barn,  the  Stockdale  barn  i  These  b:u'ns  I  have  mentioned  are 
all  within  a  radius  of  how  much  from  Flint? 

A.   You  know  as  well  as  I.    Xot  far  from  the  city. 

Q.    Within  a  radius  of  what  distance? 

A.  Within  a  radius  of  two  miles,  I  think,  would  cover  it. 
I  think  one  was  three  or  four  miles. 


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638 


AMERICAN  CRIMINAL  REPORTS. 


Q.  Have  you  heard  of  any  great  losses  since  your  arrest 
in  this  case  except  the  Miller  barn? 

A.  Yes,  sir ;  I  think  five  or  six,  I  was  going  to  say,  if  I  had 
time  to  look  it  up. 

Q.  Since  your  arrest,  except  the  Miller  barn,  will  you  tell 
me  of  juiotlier  barn?  Is  it  not  barely  possible  that  you  are  mis- 
taken about  some  of  those  matters  that  you  are  so  positive 
abont  ? 

A.    Possibly. 

Q.  Is  it  not  barely  possible  that  vou  may  have  burned  ^[jl- 
ler's  barn  ? 

A.    Xo,  sir." 

In  his  argument  to  the  jury  the  prosecuting  attorney  used 
the  following  language: 

''ilo  goes  down  the  Richfield  road.  Down  where?  To  Dr. 
Miller's  barn.  There  he  said  he  stopped,  and  went  in  that 
yard,  and  up  to  the  barn,  and  that  he  called  tliere  for  the  piw- 
pose  of  l<M)king  at  some  sheep  racks,  lie  would  not  be  positive 
whether  he  went  around  into  the  barn  or  not.  lie  Avould  not 
be  positive  about  that.  I  want  you  to  recollect  the  fact  that 
soon  after  that  Dr.  Miller's  barn  burned." 

Other  portions  of  the  cross-examination  are  of  a  similar 
character.  While  it  is  the  well-settled  rule  that  the  previous 
life  and  character  of  a  witness  may  be  inquired  into  to  elicit 
fact!-,  which  may  aid  the  jury  in  determining  what  credenci' 
they  will  attach  to  his  testimony,  yet  it  is  the  duty  of  the  courts 
to  keep  such  examinations  within  reasonable  bounds.  When 
it  is  manifest  that  the  design  or  effect  of  the  questions  is  not  to 
elicit  facts,  but  to  cast  suspicion  upon  the  character  and  credi- 
bility of  the  witness,  courts  must  intervene,  or  trials  will  result 
in  a  miscarriage  of  justice.  The  prosecuting  attorney  had  no 
ex|)ectati<>n  that  the  respondent  would  admit  that  he  was  guilty 
of  arsiin  in  the  several  cases  inquired  alK)ut.  lie  had  been  ar- 
rested and  tried  in  one  of  the  cases,  and  ac(piitted.  The  ])ur- 
pose  of  these  questions  is  too  manifest.  It  was  desigued  to  Cfni- 
vey  to  the  jury  the  impression  that  the  prosecuting  officer  li> 
lieved  he  was  guilty  of  them.  The  books  are  full  of  cases  con- 
dciiining  such  practice.  Oale  v.  People,  20  Mich.  1.57;  People 
V.  Cmpo,  70  N.  Y.  288 ;  People  v.  Cahoon,,  S8  ^Mich.  4r.O,  M) 
N.  W.  384;  Buel  v.  State,  104  Wis  132,  80  'N.  W.  78;  Elliott 
V.  Slate,  34  Xeb.  48,  51  X.  W.  315. 


PEOPLE  V.  GOTSHALL. 


63d 


Tho  inquiry  into  the  fire  at  Oil  City  was  too  remote  to  be  ad- 
niissihle  under  the  well-establislied  rule.  Greenleaf  thus  states 
the  rule: 

"The  examination  being  governed  and  kept  within  bdurnls 
by  the  discretion  of  the  judge,  all  inquiries  into  trausiietions 
of  a  remote  date  will,  of  course,  be  suppressed,  for  the  interests 
of  jii-tice  (h)  not  require  that  the  errors  of  any  man's  life,  long 
since  reiK'uted  of,  and  forgiven  by  the  connnunity,  should  ])e  re- 
called to  remembrance,  and  their  memory  ])eri)etuat('d  in  judi- 
cial documents,  at  the  pleasure  of  any  future  litigant.  Tiie 
State  has  a  deep  interest  in  the  inducements  to  reformation 
held  out  by  the  protecting  veil  which  is  thus  cast  over  the  past 
ofiense  of  the  penitent."    1  Grcenl.  Ev.  451)  (15  Ed.). 

The  i)ros(cuting  attorney  attempts  to  justify  his  cross-exami- 
nation of  the  res])ondent  in  the  following  language: 

"J  II  view  of  the  fact  tliat  there  was  the  feeling  against  rc- 
f.pondent  among  the  ]>eople  from  his  being  connected  with  the 
many  fires  which  had  occurred,  which  was  shown  by  the  testi- 
mony of  witnesses  Creque  and  Willett,  and  which  was  admitted 
by  respondent  himself  on  cross-examination,  it  Vv'as  in  llic  dis- 
cretion of  the  trial  judge  to  permit  the  questions  asked  hiai  ';u 
cross-examination." 

If  ibis  be  sound,  it  follows  that  the  jirosecution  may  show 
strong  feding  in  the  community  that  a  resjxmdent  is  guilty  of 
many  crimes  that  have  been  c<immitted,  and  tluis  justify  askii.^'> 
him  if  he  is  not  guilty  (jf  each  and  all;  and  this  in  the  face  of 
the  fact  Ihat  the  ])rosecuting  attorney  has  no  expectation  that 
he  will  admit  his  guilt.  The  statement  of  the  prosecution  is  its 
own  refutation. 

0.  In  order  to  show  a  motive,  ^Ir.  Aitken  was  called  to  tes- 
tify to  a  conversation  with  respondent  with  regard  to  the  in- 
surance ujwn  this  ])roperty: 

''Q.  iJid  you  have  any  conversation  with  him  with  refer- 
ence to  this  property? 

A.  My  imitression  is  I  did.  Still  I  would  not  be  positive 
that  such  was  the  case." 

The  prosecuting  attorney  then,  for  the  purpose  of  refreshing 
tho  witiu'ss'  recollectitni,  called  his  attention  to  a  conversation 
with  respondent  when  :Mr.  Lee  was  present.  The  witness  re- 
l)lie(l  he  did  not  recollect,  and  was  not  positive  of  any  conver- 
sation at  all  with  relation  to  the  barn  that  was  burned.    Proof 


it 


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640 


AMERICAN  CRIMINAL  REPORTS. 


of  a  tnotivo  was  very  important.  The  mere  impression  of  the 
witness  that  ho  luul  a  conversation  with  respondent  alxint  clinin;- 
ing  his  insurance  from  tiio  old  company  to  a  new  one  does  mil 
rise  to  the  dignity  of  evidence,  especially  in  a  ci'iminal  case. 
This  testimony  shonld  liave  been  excluded. 

We  are  satisfied  that  the  respondent  did  not  have  that  fair 
and  impartial  trial  which  the  Constitutiun  and  law  of  this  State 
guaranty  liini. 

Conviction  reversed,  and  new  trial  ordered. 

The  other  justices  concurred. 


PoTTEU  v.  State. 

117  Ga.  C!)3— 45  S.  E.  Rep.  37. 

Decided  June  25,   1903. 

Trial:  Prejudicial  remark  of  trial  judge  during  examination  of  a 
witness — M'hcn  the  defendant  need  not  move  for  a  mistrial — 
Erroneous  instruction  as  to  the  right  of  the  jury  to  believe  an 
impeached  icitness. 

1.  After  a  witness,  who  has  admittedly  made  contradictory  statements 

touching  a  matter  as  to  which  he  is  examined,  essays  to  offer  a 

satisfactory  explanation  In  regard  thereto,  it  is  grave  error  for 

the   presiding  judge,   in   commenting  upon   the   propriety  of  not 

adhering  to  previous  statements,  which  the  witness  c'.ainit;d  ho 

made  under  an  honest  mistake  of  facf,  vo 

planation  as  to  apparently  give  it  jucUni.- 

proval.     That  no  motion  for  a  mistrial  v., 

rema/ks  of  the  judge  In  thi.s  connertioa  «■■ 

garded  as  precluding  the  party  prejudice;!  t; 

ing  thereof  after  verdict,  in  the  event  the  finding  of  the  jury  be 

adverse  to  him. 

2.  As,  in  the  present  case,  the  trial  Judge  not  only  unwittingly  com- 

mitted an  error  of  the  nature  above  indicated,  but  gave  to  the 
jury  an  instruction  on  the  subject  of  impeachment  of  witnesses 
which  was  far  from  accurate,  If  not  misleading  as  well,  the  ends 
of  justice  require  that  the  case  should  undergo  another  investi- 
gation. 
(Syllabus  by  the  Court.) 


'^  •  i'v.de  to  his  ex- 

uTibement  and  ap- 

.::'-<i  because  of  the 

)t  properly  bo  re- 

. cby  from  complain- 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


POTTER  V.  STATE. 


641 


Error  to  the  Superior  Court,  Chatham  County;  Hon.  Pope 
Barrow,  Judge. 

W.  J.  Potter,  convicted  of  murder,  brings  error.    Kevorscd. 

Tivigys  <£•  Oliver,  John  E.  Muriel',  and  Walter  \V.  Shcppard, 
for  the  plaintiff  in  error. 

IF.  IF.  Osborne,  Solicitor-General,  and  John  C.  Hart,  Attor- 
ney-General, for  the  State. 

Fish,  J.  The  plaintiff  in  error,  W.  J.  PottCT,  was  indicted 
jointly  with  his  son,  Swayne  Potter,  for  the  murder  of  Fred 
Taylor.  The  State  relied  for  a  conviction  lx)th  upon  circum- 
stantial evidence  and  upon  the  testimony  of  a  negro  woman, 
named  Candace  Kelly,  who  swore  on  the  trial  that  she  was  an 
eyewitness  to  the  killing  of  Taylor,  and  that  W.  J.  Potter  was 
the  person  who  slu)t  him.  The  jury  returned  a  verdict  of  ac- 
quittal as  to  Swayne  Potter,  but  found  W.  J.  Potter  guilty  of 
the  crime  of  which  he  was  charged.  He  made  a  motion  for  a 
new  trial,  which  was  based  upon  several  assignments  of  error 
touching  wliat  occurred  during  the  hearing  of  the  case,  and  also 
on  the  ground  of  newly  discovered  evidence.  Ilis  motion  was 
overruled,  and  he  excepted.  lie  therein  made  complaint  of  the 
admissifin  of  certain  evidence  referred  to  as  being  ''fully  set  out 
in  the  brief  of  evidence."  We  cannot  undertake  to  pass  on  the 
merits  of  this  complaint.  Freeman  Netus.  Co.  v.  Menelcen,  115 
Ga.  1017,  42  S.  E.  Snt).  Xor  are  Ave  called  upon  to  deal  spe- 
cifically with  another  ground  of  the  motion  which  fails  to  set 
forth  the  evidence  to  the  introduction  of  which  objection  was 
made,  or  with  an  exception  to  the  allowance  of  proof  of  a  fact 
which,  even  if  irrelevant,  as  claimed,  could  not  possibly  have 
inllucnced  the  jury  to  the  prejudice  of  the  accused.  There  are 
other  grounds  of  the  ujotion,  h<iwever,  which  appear  to  us  to 
have  merit,  and  to  these  we  will  devote  the  remainder  of  our 
discussion  of  the  case. 

1.  A  witness  introduced  by  the  State  testified  on  direct  ex- 
amination that  he  was  at  a  certain  house  near  the  scene  of  the 
tragedy  on  the  morning  of  the  day  it  occurred;  that  he  saw  the 
accused  in  the  backvard,  and  had  observed  them  as  thoy  came 
to  the  house  through  a  field  lying  on  the  left-hand  side  of  a 
road  which  was  close  by.  This  testimony  was  offered  for  the 
purpose  of  showing  the  whereabouts  and  movements  of  the  ac- 

Vol.  XIII--41 


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642 


AMERICAN  CRIMINAL  REPORTS. 


r 

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fused  after  they  had  previously  left  this  house,  armed  with 
guns,  with  the  expressed  intention  of  going  on  a  deer  hunt.  It 
is  recited  in  the  motion  for  a  new  trial  that:  "Counsel  for  tli(^ 
defense  sought  to  show  that  this  witness  did  not  see  the  Potters 
at  all  as  they  returned  to  the  house,  and  to  that  end  on  cross- 
examination  ho  asked  the  witness  if  he  did  not  state  to  the  gram] 
jury  that  he  saw  W.  J.  Potter  returning  to  the  house  on  lii.s 
wheel.  Witness  answered  that  he  did  make  this  statemonr 
.  .  .  because  he  thought  he  had  a  wheel  when  he  came 
back."  The  witness  further  admitted  that  on  a  subHcqucnt  oc- 
casion, when  he  was  at  this  house,  and  was  questioned  by  the 
owaier  of  it  and  others  concerning  the  statement  he  had  made 
before  the  grand  jury,  he  theu  told  them  he  "would  have  t(i 
change"  that  statement;  "that  it  was  not  true  that  [Potter]  had 
a  wheel  when  he  came  back  to  the  house,"  but  that  his  bicycle 
had  been  "left  at  the  house"  when  he  and  his  son  started  on 
their  hunt.  The  fact  was  also  brought  out  that  on  another  occa- 
sion, when  the  witness  was  in  the  oiTico  of  the  solicitor-general, 
and  was  asked  "alxjut  this  man's  coming  back  to  the  house," 
the  witness  replied  that  Potter  "came  on  a  wheel."  When  ques- 
tioned by  counsel  for  the  accused  as  to  what  was  the  real  trutli 
of  tl:e  matter,  the  witness  answered:  "I  made  a  mistake;  he 
did  not  have  a  wheel."  It  appears  that  the  "witness  was  then 
examined  on  other  matters  at  length,  and  when  he  had  con- 
cluded his  testimony  he  was  addressed  by  the  court"  concern- 
ing his  previous  contradictory  statements,  the  questions  put 
to  him  and  the  responses  made  thereto  being  as  follows : 

"The  Court:  You  said  just  now  that  you  made  one  state- 
ment, and  then  you  said  you  would  change  that  statement  ? 

Witness:    Yes,  sir. 

The  Court:  l)id  you  till  them  that  because  vou  were  sat- 
isfied  that  yon  had  made  a  mistake  i 

Witness:  Yes,  sir;  1  was  satistied  that  I  had  made  a  mis- 
take." 

His  honor  thereupon  remarked,  "You  did  exactly  right,  then, 
to  change  your  statement."  To  the  correctness  of  this  observa- 
tion the  witness  gave  his  assent  by  saying,  "Yes,  sir." 

It  is  earnestly  contended  in  behalf  of  the  plaintiff  in  error 
that  the  above-quoted  remark  by  the  presiding  judge  was  "equiv- 
alent to  the  expression  of  his  opinion  that  the  witness  had 
spoken  the  truth.     In  other  words,  from  the  use  of  this  com- 


PfW 


POTTER  V.  STATE. 


G13 


mctulatory  langungo  tlio  jury  iniglit  well"  have  roocivcd  flic 
iiii|in'S,si()n,  and  probaW;  did  in  fact  "infer,  that  the  cmirt  at 
1(  ast  holievcd  that  the  witness  was  honestly  i.-is  aken." 

Th(  re  is  nuieh  force  in  this  argnnient.  While  we  are  satis- 
fied that  his  honor  did  not  mean  to  intimate  that  the  witness 
had   aeted  conseientioiislv  and  ni)riu'htlv  in  testifvinc  on  the 

•  111'  »'  o 

trial  what  he  lH'!i(>ved  was  the  real  trnth,  and  had  done  exactly 
rijiht  in  not  adhering  to  a  ])revions  statement  which  he  had 
made  nnder  an  honest  mistake  of  fact,  yet  how  can  we  arbi- 
trarily assnmc  that  the  inry  nnderstood  his  honor  as  int(  iidinir 
to  say  mercdy  that  if,  in  point  of  fact,  the  witness  had  made 
i-ueh  a  mistake,  and  had  later  hccome  convinced  that  this  Avas 
so,  then  he  did  exactly  right  to  change  his  statement  so  as  to 
make  it  c<»nform  to  what  he  believed  was  the  truth  ?    If  it  be 
on('('  conceded  that  the  jnry  may  not  have  so  midcrstood  his 
honor,  or  that  his  rennirk  was  calculated  to  convey  to  them  the 
impression  that  he  was  satisfied  of  the  good  faith  of  the  wit- 
ness, and  approve  d  the  course  he  had  ])nrsued,  then  the  mtiking 
of  this  rennirk  must  bo  regarded  as  not  only  unfortunate,  but 
as  alfiirding  cause  for  ordering  a  new  trial.     Our  Civil  Code, 
Section  41534,  of  1895,  expressly  declares  that  a  trial  judge 
shall  not,  in  any  case,  civil  or  criminal,  "during  its  progress 
or  in  his  charge  to  the  jnry     .     .     .     express  or  intimate  his 
opinion  as  to  what  has  or  has  not  been  proved";  and  this  sec- 
tion also  contains  the  imperative  mandate  that,  when  it  shall 
apjK'ar  in  any  case  that  there  has  been  a  violation  of  its  pro- 
visions in  this  regard,  "such  violation  shall  be  held  by  the  Su- 
preme (Jourt  to  be  error,  and  the  decision  in  such  case  reversed, 
and  a  new  trial  granted."    So  it  has  been  held  that  a  disregard 
of  this  section  on  the  part  of  a  trial  jn<lge  "renders  the  grant  of 
a  new  trial  imperative,  without  reference  to  the  correctness  of 
the  verdict."    Saiidcrs  v.  Nicolson,  101  Ga.  730,  28  S.  K.  1)76. 
In  an  early  case — that  of  Pound  v.  Stale,  43  Ga.  90 — this  court 
ruled  that  the  judge  of  the  trial  court  committed  grave  cvy<)1'  in 
complimenting  a  witness  for  the  prosecution,  since  to  do  so  was 
"to  give   an   impro])er  potency  to   the  influence  of  his  testi- 
mony": and  in  Florida,  etc.,  R.  Co.  v.  Lucas,  110  Ga.  121,  35 
S.  E.  283,  it  was  held  to  be  a  violation  of  the  provisions  of  the 
abovo-cited  section  of  the  Code  to  "allude  to  the  testimony  of 
a  particular  witness  in  such  a  manner  as  to  apparently  give 
it  judicial  indorsement  and  approval."    After  mature  delibera- 


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644 


AMERICAN  CRIMINAL  REPORTS. 


tion,  we  have  reached  the  conehision  that  the  remark  of  th^' 
jiitlgo  of  which  comphiint  is  inado  in  the  present  case  was  ciil- 
cuhited  to  convey  to  the  jnry  the  idea  that  ho  accepted  as  true 
tiie  explanation  otfered  hy  tlie  witness  under  examination  cmi- 
ecrning  contradictory  statements  ]n*evionsly  nuuh;  hy  him,  and 
pave  approval  to  his  apj)arently  conscientious  retraction  of  such 
statements,  when,  as  he  testified,  he  hecame  convince<l  he  was 
mistaken  as  to  what  ri'ally  occurred.  See  Alexander  v.  Stale, 
lUGa.  2(;0,  40  S.  E.  231. 

On  the  argument  l)efore  us  counsel  for  the  State  suggested 
tliat,  as  the  accused  did  not  ])resent  a  motion  for  a  mistrial  he- 
cause  of  the  supposed  prejudicial  effect  of  the  judge's  conuncnt 
to  this  witness,  but  rcnniined  silent  during  the  further  progress 
of  the  trial,  and  took  his  cliauccs  of  an  acipiittal,  he  could  not, 
after  verdict,  with  good  grace  insist  that  he.  was  entitled  to  a 
new  trial  on  that  ground.  In  this  connection  our  attention  was 
directed  to  a  line  of  decisions  by  this  court  to  the  eifect  that 
where  a  solicitor-general  is  guilty  of  improjier  conduct  calcu- 
lated to  operate  to  the  prejudice  of  the  accu-'od,  the  latter  is 
called  upon  to  elect  whether  he  will  exercise  his  right  to  demand 
that  the  trial  he  stopped  tlien  and  there,  or  consent  to  its  ])ro- 
eeeding  upon  the  judge's  taking  all  necessary  ste])s  to  remove 
any  hurtful  influence  ujwn  the  jury  hy  cautioning':  them  not  to 
pay  any  regard  to  such  improper  c(mduct  on  the  [)art  of  counsel 
for  the  State,  etc.,  etc.  We  recognize  these  decisions  to  bo 
sound,  but  are  of  the  oi»inion  that  they  are  not  controlling  in 
the  present  case.  A  solicitor-general  takes  the  role  of  an  advo- 
cate, and  experience  has  demonstrated  tha*^  he  may  at  times  in 
the  heat  of  discussion  say  things  which  are  impro])er,  or  be  led 
by  his  zeal  as  a  partisan  into  a<lo))ting  measures  to  Avhich  resort 
shouhl  never  be  made.  When  this  occurs,  tiie  law  gives  to  the 
accused  the  option  of  either  moving  for  a  mistrial,  and  thereby 
securing  a  trial  before  another  jury,  or  taking  his  chances  of 
ac(]uittal  as  thus  more  or  less  impaired.  When,  however,  the 
presiding  judge  violates  the  duty  of  passive  nonconunittal  im- 
posed upon  him  by  Sec.  4334  of  the  Civil  Code,  the  accused  is 
not  and  should  not  bo  put  to  such  an  election.  There  is  con- 
nected with  the  court  no  one  of  higher  authority  to  k'stow  njton 
the  judge  the  frown  of  disa])proval  or  to  caution  the  jury  not 
to  allow  his  improper  conduct  to  influence  them.  He  might,  it 
is  true,  if  called  on  to  do  so,  undertake  to  remove  its  sting  hy  ex- 


POTTER  V.  STATE. 


G45 


plaining  to  the  jury  that  he  did  not  intend  to  expre^\s  any  opin- 
ion of  liis  own  as  to  what  had  heen  proved,  and  was  not  to  be 
nn(k'rst(K)d  as  even  Mitiniating-  what  liis  opinion  in  regard  there- 
to really  was.  Hut  ii'  could  go  no  further.  He  Avould  not  be 
at  liberty  to  add  thiit  in  ])oint  of  faet  he  did  not  entertain  the 
views  his  ill-ehr.-en  languiige  would  seem  tj  iudioatc;  for  to 
thus  attempt  to  correct  and  cure  his  error  as  agfiiiist  the  accused 
would  involve  the  judge  into  the  i)redicanicnr  of  conanitiiiig  a 
fresh  error,  as  against  the  State,  of  precisely  the  same  nature. 
So  all  he  could  properly  do  would  l)e  to  dischiim  any  intention 
of  expressing  or  intimating  an  opinion,  leaving  the  jury  free 
to  draw  their  own  conclusions  as  to  whether  or  not  he  had,  as 
matter  of  fact,  actnallv  conunitted  lilmself  by  unwittinaly  be- 
traying  his  views  to  them.  The  law  gives  to  one  accused  of 
crime  the  absolute  guaranty  of  a  new  trial  in  the  event  he  is 
deprived  of  a  fair  and  inii)artial  trial  by  reason  of  the  fact  that 
the  judge  before  whom  he  is  convicted  commits  the  grave  error 
which  the  above-mentioned  section  of  our  Code  declares  can  in 
no  ease  be  overl(M)ked  or  forgiven.  It  is  not  •within  our  prov- 
ince to  change  the  law. 

2.  Error  is  assigned  ujion  the  following  charge  to. the  jury: 
''Witnesses  may  be  impeached  by  proof  of  contradictory 
statements,  by  disjiroving  the  facts  testitied  to  by  them,  and 
by  proof  of  general  bad  character.  ]lere,  too,  we  come  to 
ground  which  is  the  exclusive  province  of  the  jury.  There  is 
no  part  of  the  machinery  of  a  court  which  can  dictate  to  you 
or  control  you  in  estimating  the  weight  to  be  given  to  the  testi- 
mony of  witnesses.  There  is  no  department  of  the  court  which 
can  lawfully  judge  as  to  whether  a  witnees  is  successfully  im- 
l)eached,  if  ini])eached  at  all,  except  you.  You  have  a  right, 
if  you  see  proper  to  do  so,  to  believe  the  testimony  of  a  witness 
who  is  impei.ched.  You  have  a  right,  if  you  see  proper  to  do 
so,  to  disbelieve  the  testimony  of  a  Avitness  who  is  not  impeached. 
You  are  supreme  in  that  department.  The  weight  to  be  given 
to  the  testimony  of  witnesses  is  exclusively  for  you.  It  is  the 
jirivilege  of  parties  to  impeach,  hy  proof  of  contradictory  state- 
ments, by  proofs  of  bad  character,  and  by  disproving  the  facts 
testitied  to  by  the  witness.  Those  avenues  of  impeachment  are 
oi)en  to  the  parties  in  the  case,  but  after  all  it  is  for  you  to 
say  where  the  truth  lies." 

This  charge  is  excepted  to  on  the  general  ground  that  it  does 


1| 
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tii 


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I 


AMERICAN  CRIMINAL  REFOUTS. 


not  correctly  state  the  Inw  on  the  auhjcct  of  impeachment,  mid 
on  the  special  ground  that  tiio  jury  tiierehy  instructed,  with- 
out (puiliticatioji  or  explanation,  that  thoy  *' had  tlic  rij>lit  to 
believe  if  they  saw  proper  to  do  so,  the  testimony  of  u  wilmss 
who  had  k'cn  impeached."  We  have  no  hesitation  in  snv- 
ing  wc  think  wo  know  what  the  judge  meant  by  this  instruc- 
tion ;  but  we  are  by  no  means  clear  as  to  whether  an  averiii;c 
juror  would  likely  l)e  ])rotited,  mishMJ,  or  not  enlightened  ni 
nil  thereby.  At  In'st  the  charge  was  far  from  accurate,  if  iKit 
nctmdiy  misleading  and  confusing.  We  hold  that  the  trial 
ju<lge  conmiitted  error  in  giving  it.  Wiiether  or  not  it  was  so 
prejudicial  as  to  rcMpiire  a  reversal  of  the  judgment  below,  \v(' 
do  not  fe(d  called  upon  to  definitely  decide.  The  case  nnist 
inidergo  another  investigation  l>eonusc  of  the  error  pointed  mit 
and  discu9sc<l  in  the  prece»ling  division  of  this  opinion.  Were 
this  othenvise,  it  is  exceedingly  doiditful  whether  we  would  he 
warranted  in  U])holding  the  conviction.  Uidcss  the  jtirv  nii- 
derstotid  this  charge  to  mean,  not  that  they  were  at  lilMTty  to 
arbitrarily  accept  as  true  the  testimony  of  a  witness  who  had 
been  acttndly  "impeached,"  but  mendy  that  it  was  for  them  to 
determine  whether  or  not  an  attempt  to  impeach  a  particular  wit- 
ness had  been  successfully  made,  the  charge  must  have  cut  very 
strongly  against  tho  jjlaintiif  in  error.  One  of  the  witnesses  he 
sought  to  im])(^acli  was  Candace  Kelly,  wlio  claimed  not  only  that 
she  was  in  a  situation  where  she  could  sec  the  killing,but  that  she 
distinctly  recogiiized  W.  J.  Porter,  the  accused,  as  the  slayer. 
She  fij  .her  swore  she  had  so  testified  when  she  was  cxamineil 
before  the  grand  jury,  though  admitted  having  t<dd  an  alto- 
gether different  story  when  on  another  occasion  she  had  been 
questioned  by  one  of  the  attorneys  for  the  defense.  Several 
memlMTS  of  the  grand  jury  before  which  she  ap])eared.  weri' 
called  upon  to  testify  as  to  what  she  had  then  stated  under 
oath,  and  without  exception  they  swore  she  had  made  no  ])re- 
tense  of  having  seen  tho  crime  committed,  or  having  any  knowl- 
edge as  to  who  was  the  perpetrator  of  it,  but  stated  merely 
that  she  heard  several  shots  fired,  and  left  the  ineudKn's  of  the 
grand  jury  under  the  impression  that  she  had  not  been  an  eye- 
witness to  the  homicide,  and  could  furnish  no  clew  as  to  who 
was  the  guilty  party. 

Judgment  reversed.    All  the  Justices  concurring. 


STATE  V.  CR0TT3. 


G47 


II 


ninit,  iiiii] 
tc'd,  Willi- 
!  rijulit  i<> 

U   Willii'ss 

n  s!iv- 
a  iiistnic- 
II  iivcnii^c 
litciK'd  :ii 

lO,    if   IKit 

the  ti-i;il 
it  was  SI  I 

K'loW,   \V(! 

use  iiiiist 

lilted  (lilt 
Dn.  Were 
would   lie 

jury  1111- 

IImtIv  to 

who  hiid 
'  tlu'lll  to 
'iilar  wil- 

ciit  very 
liosscs  h(> 
only  thiif 

that  she 
0  slayer. 
'xaiiiiiie(l 

nn  alto- 
lad  Ikh'u 

Several 
•ed.  Were 
d   under 

no  i)re- 

y  knowl- 

nuTelv 

's  of  the 

an  evo- 
i  to  who 


State  v  Ckotts. 

a  Wash.  245— GO  Pac.  Rep,  403. 

Decided  March  10.  1900. 

Tbial— PnACTiCE:  Prcjuilhial  and  Icndinq  questions  to  a  witncis  by 
prcsidinff  judge— Constitutional  right  need  not  he  preserved  by 
exceptions. 

1.  The   provlslonH  of  the  Constitution   of  the  Stnto  of  Wiishinpton, 

which  declare  that  Jurors  shall  be  the  solo  Judges  of  the  weight 
of  testimony  and  the  creail)illty  of  witnesses  and  that  judges 
shall  not  Instruct  on  matters  of  fact,  nor  comment  tl  croon,  are 
violated,  when  a  trial  Judge,  In  a  criminal  case,  unnoressrvrlly 
examines  a  witness  In  audi  a  manner,  by  leading  questions  or 
otherwise,  as  would  Indicate  his  opinion  on  matters  of  tact. 

2.  "It  Is  a   fact  and  universally  linown  by  courts  and  praciltloucrs 

that  the  ordinary  Juror  Is  always  anxious  to  obtain  the  opinion 
of  the  court  on  matters  which  are  submitted  to  his  discretion; 
and  that  such  opinion,  If  luicwn  to  the  juror,  has  great  iiilluouco 
upon  the  final  determination  of  the  Issues.  This  Infornialion 
can  be  conveyed  as  readily  to  tlie  Jury  by  leading  questions  a.-iked 
and  the  manner  of  the  judge  in  asking  such  quoHtions,  aw  by 
direct  comment  ui)on  the  testimony  in  the  charge  to  the  Jury." 

3.  Where  a  constitutional  right  of  tlic  defendant  Is  Invaded,  the  error 

may  be  reviewed  without  any  objection  or  exception  In  the  trial 
Court. 

4.  As  a  general  rule,  an  error  not  excepted  to  at  the  time,  will  not 

be  reviewed;  but  tliat  rule  should  not  be  enforced  "when  its  ob- 
servance would  tend  to  destroy  the  only  object  for  which  the 
objection  la  ordinarily  made." 

5.  Unless  absolutely  necessary  in  the  furtherance  of  justice,  the  trial 

Judge  should  not  place  counsel  for  the  defendant  in  the  delicate 
and  dangerous  position  of  entering  Into  an  open  controversy  with 
the  Judge  in  relation  to  his  action. 

6.  Counsel  for  defendant  should  not  be  required  to  imperil  the  de- 

fendant's Interest  in  the  trial  court,  for  the  purpose  of  having 
errors  reviewed  in  an  appellate  court, 

7.  The  presiding  Judge  at  the  trial  of  a  criminal  case  should  not  ask 

a  witness  any  question,  which  siiould  not  be  asked  by  counsel. 

8.  Certain  questions  asked  by  the  trial  Judge  of  a  witness,  declared 

to  be  leading  questions  and  such  as  should  not  have  been  asked 
by  either  court  or  counsel. 

Appeal  from  Superior  Court,  Pierce  County;  Hon.  W.  II. 
II.  Kean,  Judge. 

For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
thiu  volume. 


h 


jtj-" 


A 


648 


AMERICAN  CRIMINAL  REPORTS. 


1 


Joseph  Ckotts,  convicted  of  manslaughter,  appeals.  Kc- 
vorsi'd. 

Einmctt  N.  Parker  and  B.  A.  Growl,  for  the  appellant. 

Geo.  II.  Walker,  Prosecuting  Attorney,  for  the  State. 

Di'nuar,  J.  The  defendant  was  tried  on  an  inforniatifni 
charging  him  with  the  crime  of  murder  in  the  first  degree,  and 
upon  the  cause  being  submitted  to  the  jury  a  vei'dict  was  re- 
turned finding  him  guiUy  of  manslaughter.  Judgment  Wiis 
entered,  and  an  apjx'al  is  brought  here  on  errors  alleged  to  have 
been  connnitted  by  the  court. 

The  first  error  alleged  is  the  action  of  the  court  in  asking  lead- 
ing questions  of  the  witnesses,  and  asking  them  in  such  a  way 
as  to  violate  section  10,  art.  4,  of  the  Constitution,  which 
provides  that  judges  shall  not  charge  juries  with  respect  to 
matters  of  fact,  nor  comment  thereon.  In  this  case,  while  tlu' 
witness  Strachan  was  relating  circumstance-  attending  the 
aft'ray,  and  during  the  cross-examination  by  defendant's  coun- 
sel, the  court  inter])osed  as  follows: 

''Q.  When  you  raised  your  cue  that  time  and  threatened  the 
deceased,  and  commanded  him  to  ])ut  down  the  dipper,  you 
say  that  he  threw  it  down.  Now,  do  you  think  that  was  dune 
in  obedience  to  that  coniamnd  J 

A.     Yes,  sir. 

Q.     lie  seemed  at  that  time  to  subside  ? 

A.     Yes,  sir. 

Q.     And  yield  ? 

A.     Yes,  sir. 

Q.     And  had  apparently  consented  to  stop  his  quarreling? 

A.     Yis,  sir. 

i}.  And  at  that  time,  then,  the  allray  seemed  to  have  the 
appearance  of  being  at  an  end,  as  far  as  he  was  concerned  i 

A.     Yes,  sir." 

Again,  when  counsel  f  n*  the  defense  was  cross-examining  the 
witness  l*attt)n,  who  had  testified  in  detail  as  to  how  tl:e  <le- 
ecased  was  acting»at  the  time  the  fs'tal  shot  was  fired,  tlie  courl 
inter[)osed  the  following  (piestions: 

''(-i.  Was  Mr.  Snell  at  tliat  time,  or  did  he  have  the  appear- 
ance of,  giving  up  the  trouble? 

A.    Yes,  sir." 

At  this  point  counsel  for  defendant  intori)osed  the  following 
objection:     "If  your  honor  please,  wc  desire  to  object.     I  be- 


(1 11 


le 


•poiir- 


I  IN- 


STATE V.  CROTTS. 


6i9 


liove  we  have  the  right  to  object  to  the  court's  asking  a  ques- 
tion, if  we  believe  it  is  iuimntcrial.  We  ought  to  have  objected 
to  similar  questions  yesterday,  because —  Well,  dm-  ground 
simply  is  that  they  are  leading,  and  that  they  are  leading  yway 
from  the  interests  of  the  defendant.  They  are  leading'  in  the 
interests  of  the  State.  I  don't  say  but  Avliat  it  is  ])i'oper  for  the 
court  sometimes,  and  very  often,  to  ask  que>ti<ins,  and  I  am 
not  objecting  to  it  on  that  ground,  but  I  object  to  it  just  for 
the  same  reason  as  if  the  ])rnsecuting  attorney  was  asking'  that." 

Court:  As  I  understand  the  rule,  the  e<iurt  may  ask  any 
question  that  it  sees  ht,  if  it  be  leading  or  otherwise. 

Mr.  Parker:  Yes,  sir;  I  think  it  has,  tou ;  Imt  I  think  that 
it  is  governed  by  the  same  rules. 

Court:     Objection  overnded. 

Mr.  Parker:    We  a<k  an  exception. 

Court:    Exception  noted. 

Q.     You  answered  the  question? 

A.     Yes,  sir. 

By  Mr.  Farley  (for  the  State)  :  Q.  So  the  jury  can  hear 
what  was  the  answer  to  the  question  ? 

A.  I  sai<l  he  was  not  in  the  act  of  going  any  further  in  the 
struggle.-   He  seemed  to  be  giving  up  the  fight. 

The  defendant  in  this  case  was  relying  iipon  self-defense,  so 
it  ..ill  be  seen  that  the  intc^rrogatories  of  the  court  were  con- 
cerning material  questions  involved  in  the  case. 

It  is  urged  by  the  respondent  that,  as  no  exceptions  were 
taken  by  the  defendant  to  the  questions  propounded  by  the 
judge,  at  the  time  they  were  ])rop(nmded,  under  the  gt'neral  rule, 
and  under  the  rulings  of  this  court,  no  basis  for  a  delermina- 
tion  of  those  questions  in  this  court  has  been  laid.  It  is  trtic 
that  the  ordinary  rule  is  in  consonance  with  the  ruling,  frc- 
cpieiiily  announced  by  this  court,  that  alleged  errors  will  not 
be  reviewed  withoiit  they  are  excepted  to  at  the  time  they  are 
eonnnitted  ;  but  we  do  not  think  the  error  alleged  in  this  instance 
falls  within  the  rule,  nor  that  the  rule  .should  he  ('ntoree<l  wIkmi 
its  observance  would  tend  to  destroy  the  very  olijeet  for  which 
the  objection  is  ordinarily  nuide.  An  attorney  is  jjlaced  in  a 
delicate  posititm  under  such  circumstances.  It  is  dangerous 
for  him  to  enter  into  a  controversy  with  the  court  in  relation 
to  matters  and  proceedings  which  the  court  itself  is  instituting. 


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650 


AMERICAN  CRIMINAL  REPORTS. 


The  court  should  not  place  counsel  in  this  position  without  it 
becomes  absolutely  necessary  for  the  furtherance  of  justice. 

In  this  case  the  defendant's  counsel  had  to  choose  between 
the  probability,  or  at  least  the  pob.Mbility,  of  prejudicing  liis 
case  in  the  minds  of  the  jury  by  reason  of  his  expre^;sed  u]>j)(i>i- 
tion  to  the  course  pursued  by  the  court,  or  else  lose  the  Ixaelit 
of  an  objection  which  he  was  entilkd  to  make.  We  do  not 
think  counsel  should  be  compelled  to  im])eril  their  cause  in 
the  lower  court  for  the  purpose  of  protecting  their  rights  in  tlic 
appellate  court. 

Besides,  in  this  case,  upon  the  second  effort  of  the  court  in 
tliis  direction,  counsc  1,  probably  feeling  that  it  could  not  in 
safety  be  tolerated  longer,  objected  to  the  cpiestions  propounded 
by  the  court,  and  suggested  the  error  Avhicli,  in  his  judgment, 
the  court  had  committed  the  day  before,  when  his  objections 
were  overruled,  and  he  was  cavalierly  infornud  tliat  the  court 
could  ask  any  questions  that  it  saw  fit;  and  this  controversy 
was  es])ec'ially  called  to  the  attention  of  the  jury  by  the  inter- 
position of  the  prosecuting  attorney,  who  iiisisted  that  the 
question  asked  by  the  court  should  be  answered,  so  the  jury 
could  hear  it. 

Again,  where  the  constitutional  right  has  been  invadetl,  it 
has  been  held  by  this  court  that  no  failure  of  objection  or 
exception  should  stand  in  tlie  way  of  considering  errors  baseil 
on  the  violation  of  such  provisions. 

In  Liiihcck  V.  Slate,  1  Wash.  3:30,  25  Tac.  452,  it  was  held 
that,  where  the  defendant  in  a  prosecution  for  burglary  was 
not  sworn  as  a  witness  in  his  own  behalf,  it  was  error  for  the 
court  not  to  instruct  the  jury  that  from  such  fact  no  inference 
of  guilt  should  be  drawn  against  the  defendant,  and  the  fact 
that  the  defendant  remained  silent  did  not  amount  t<)  a  waiver 
of  such  right ;  and  in  that  case  it  was  said : 

"The  statute  in  question  makes  it  the  duty  of  the  court  to 
give  such  instruction,  irrespective  of  the  action  of  the  defend- 
ant in  relation  thereto;  and  while  we  do  not  now  hold  that  the 
right  to  have  this  instruction  given  may  not  be  waived  by  sonu' 
express  act  of  the  defendant  to  that  end,  we  do  hold  that  the 
simple  fact  that  he  remained  silent  did  not  amount  to  such 
waiver." 

In  this  case  the  Constitution  emphatically  prohibits  the  judge 
from  charging  the  jury  with  respect  to  matters  of  fact,  or  from 


mmv '  n 


STATE  V.  CR0TT3. 


651 


ccmmcnting  thereon;  so  that  the  (hity  was  as  im]ior;itivo  on  tlie 
court  not  to  comment  on  the  facts  as  it  was  in  Liidirrl:  r.  Slnh: 
to  give  such  instructions  as  the  statute  made  it  its  dntv  to  "ivc. 

In  Freidrlch  v.  Territory,  2  Wash.  358,  2(i  P-m;  dTO,  \t  w-is 
hold  that,  aUhough  there  was  no  exccptidii  to  tlic  wliole  or  a 
part  of  the  charge  on  the  ground  that  it  is  an  ariiunicnf  upon 
the  facts,  yet,  in  a  capital  ease,  if  there  is  prejiulicial  error 
which  is  patent  upon  the  face  of  the  record,  den_viii<p  the  licensed 
the  fair  and  impartial  trial  which  is  his  right,  tlic  suprenic 
court  will  not  allow  these  technical  ohjectious  to  deprive  tlie  de- 
fendant of  a  new  trial. 

In  ISIafc  V.  Myers,  8  Wash.  177,  35  Pac.  580.  it  win  lield, 
following  Linbeck  v.  State,  supra,  tliat  where  the  ac('ll^(.l  in 
a  erimimil  prosecution  fails  to  testify  in  his  own  liclii!!i",  it  is 
the  duty  of  the  court,  under  the  statute,  without  an  alliiniiitive 
recpu'st  therefor,  to  charge  that  no  inference  of  ii.\\\\[  -liould 
arise  against  the  defendant  on  account  tlicreof. 

There  are  diiferent  ways  by  which  a  judge  niav  coimnent 
upon  the  testimony,  within  the  meaning  of  the  ((.iisiiintiou 
referred  to  alxjve.  The  object  of  the  eonstitution;!!  iirnvision, 
diUibllcss,  is  to  jtrevent  the  jury  from  l)oing  inihicniM  d  hy  knowl- 
edge conveyed  to  it  by  the  court  of  wliat  tiic  conrrs  o|.iuinn 
is  on  the  testimcniy  submitted.  The  constitution  lins  iiiiidc  tlie 
jm*y  the  sole  judge  of  the  weight  of  the  testinmny  and  ot'  the 
credibility  of  the  witnesses,  and  it  is  a  fact  well  and  universally 
known  by  cour's  and  practitioners  that  the  ordinary  juror  is 
always  anxious  to  obtain  the  opinion  of  the  court  on  'iiiitters 
which  are  submitted  to  his  discretion,  and  that  sncli  oii'iiion, 
if  known  to  the  juror,  has  a  great  intluence  u])on  the  tii:;!l  dr- 
termimitiou  of  the  issues.  This  information  can  he  conveyed 
as  readily  to  the  jury  by  leading  (piestions  asked  of  thcni,  and 
the  nuinner  of  the  judge  in  asking  such  (piestions,  as  by  a  tlirect 
comment  ui)on  the  testimony  in  the  charge  to  the  jury. 

A  glance  at  the  (piesticnis  asked  l)y  the  court  in  this  case  of 
witness  8trachan  is  sufficient  to  show  that  it  was  the  intention 
of  the  court  to  have  the  idea  conveyed  to  the  jury  that  the 
deceaseil  ha<l  subsided  from  any  demonstrations  which  lie  had 
been  making  before  the  fatal  shot  was  fired,  and  the  effect  upon 
the  jury  was  identically  the  same  as  though  he  had  told  them 
that  the  evidence  tended  to  show  this  state  of  facts.  We  have 
examined  the  cabcs  cited  by  the  respondent  to  sustain  the  action 


11 


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■I       '!■•  : 


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G52 


AMERICAN  CRIMINAL  REPORTS. 


iff' 


of  the  court  in  this  respect,  hut  we  do  not  think  they  are  in 
point.  There  is  no  other  constitution  that  we  have  l)ceu  able 
to  find  that  is  as  prohihitive  of  the  action  of  the  court  in  this 
respect  as  ours.  JMost  of  thoni  are  to  the  effect  tluit  the  jud^c 
shall  not  charge  the  jury  in  respect  to  matters  of  fact.  Oiu'h, 
it  will  be  noticed,  goes  l)eyond  that,  and  provides  that  tin  y 
shall  not  comment  thereon;  indicating  by  its  very  language  tlmr. 
comments  could  be  indulged  in  by  the  court  otherwise  than  by 
its  charge  to  the  jury. 

Again,  outside  of  any  constitutional  provision,  these  ques- 
tions Avere  leading.  They  would  not  have  l)een  tolerateil  for  a 
moment,  had  they  been  asked  by  counsel.  There  can  be  no 
principle  of  law  in  the  administration  of  justice  that  will  allow 
a  court  to  ask  an  incomijctent  cpiestion,  any  more  than  ctumsfl. 
It  is  true  that  courts  may  sometimes  ask  leading  questions;  but, 
under  such  circumstances,  it  wo\dd  be  proj)er  for  the  court  to 
permit  counsel  to  ask  leading  questions;  but  they  nuist  be  asked 
neither  by  the  court  nor  the  counsel  excepting  when  tlM-  nect  s- 
sity  exists  therefor,  and  there  was  no  necessity  shown  in  this 
case.  Courts  may  frequently  indulge  in  asking  questions  in 
furtherance  of  justice,  when  there  has  been  an  omission  on  tli(> 
part  of  the  officers  of  the  State  which  would  tend  (o  bring  alxmt 
a  nusearriage  of  justice ;  but  even  then  such  questions  must  be 
competent  cpiestions.  Kules  of  law  governing  the  admission 
of  testimony,  and  questions  tending  to  elicit  facts,  are  made 
for  the  benefit  and  the  ju'otection  of  ])arties  litigant;  ami  the 
])rotection  should  be  guarantied  as  certaiidy  when  a  (piestion  is 
asked  by  the  court  as  when  asked  by  counsel  in  the  case.  The 
cases  cited  by  the  resjxindent  are  to  the  effeet  that  the  asking  of" 
leading  (juestions  is  a  matter  which  is  largely  discretionary  with 
the  trial  court,  and  will  not  be  reviewed  by  the  apjM'lIate  court 
ludess  such  discretion  has  been  abusiTl ;  and  the  cases  cited  all 
state  the  fact  gencM'ally,  without  giving  the  particular  instances 
of  allege<l  abuse,  that  it  does  not  appear  in  such  cases  that  dis- 
cretion was  abused.  But  in  this  case  counsel  of  recognized 
ability  was  condtu'ting  the  case  for  the  State;  the  examination 
and  cross-examination  of  the  witnesses  were  conducteil  in  a 
skillful  manner,  and  the  witnesses  in  qiu'stion  were  not  unwill- 
ing witnesses;  and  there  is  nothing  whatever  in  the  record 
tending  to  show  that  the  character  of  the  exannnation  indulged 
in  by  the  court  was  necessary.    That  it  had  an  influence  on  the 


CUNNINGHAM  v.  PEOPLE, 


653 


minds  of  the  jiiry  prejixdicial  to  tlio  interest  of  the  defendant 
can  readily  be  conceived  from  an  investigation  of  the  record. 

80  far  as  the  other  alleged  errors  are  conceraed,  we  are  in- 
clined to  think  they  arc  without  merit,  under  the  former  rul- 
ings of  this  court,  and  we  will  therefore  not  enter  into  a  discus- 
sion of  them  here;  but  for  the  error  discussed  the  judgment  will 
be  reversed,  and  a  new  trial  granted. 

GoKDOx,  C.  J.,  and  Fullekto^-,  IIeavls,  and  A^'DEKs,  J.  J., 
concur. 


CuN?fINGnA:Nt  V.  Peoi'le. 

195  111.  550— C3  N.  E.  Rep.  517. 
Opinion  filed  April  IG,  1902. 

Tkiai,:  Prcjndicial  remarks  of  the  presiding  judge— Prejudicial  entry 
of  nolle  as  to  two  defendants,  during  the  trial— Burden  of  proof- 
Cause  of  death— Feeble  condition  of  the  deceased— Age  of  pris- 
oner— Instructions  as  to  principals  and  accessories. 

1.  When    remark   by   judge   is   ground   for   reversal. — A   remark   by 

the  judge  before  the  jury  in  a  criminal  case  is  ground  for  re- 
versal, If,  considered  as  a  statement,  it  indicates  to  the  jury  the 
belief  of  the  judge  upon  a  material  fact  prejudicial  to  the  de- 
fense, or  If,  considered  as  a  question,  it  is  so  leading  and  sug- 
gestive that  had  it  been  propounded  by  counsel  for  the  People  it 
would  have  been  error  to  overrule  an  objection  thereto. 

2.  Prejudicial  remarks. — Where  counsel  for  the  defendants  in  a  mur- 

der trial  Is  trying  to  fiame  an  hypothetical  question,  under  the 
evidence,  as  to  how  the  bruises  found  upon  the  head  of  the  de- 
ceased were  ])roduced,  it  is  error  for  the  court  to  ask,  before  the 
jury,  "Why  don't  you  say  the  bruise  was  caused  by  a  blow  from 
a  flst?"  and  again,  later,  "Hadn't  you  better  add  to  that,  that  the 
biTii.'.e  was  produced  by  a  blow  of  a  fist  and  that  he  was  choked?" 

3.  What  questions  are  for  the  jury  in  a  murder  trial. — If  the  evi- 

dence tends  to  show  that  the  victim  of  the  assault  wa^  in  feeble 
health;  that  his  heart  and  other  vital  organs  were  diseased;  that 
the  bruises  on  his  head  were  slight;  that  his  skull  was  not  frac- 
tured; that  after  being  struck  by  his  assailant  he  fell  to  the 
pavement;  that  he  got  up  and  walked  a  few  steps  and  fell  again, 
It   is   for  the  jury  to  say,  from  the  evidence,  what  caused  the 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


Ill    ;  , 

■1;  '■  ! 


I 


ji;. ,( 

I,.    I 


•t 


Ill 


V   ! 


'■■V:V 

<:   ■   f  I'iti 


k 


i 


! 


i 


654 


AMERICAN  CRIMINAL  REPORTS. 


bruises,  and  whether  death  resulted  from  them  or  from  the  fall 
or  from  his  diseased  condition. 

4.  When  it  is  error  for  the  court  to  grant  a  nolle  prosequi  during 

trial. — Where  the  defendants  on  trial  for  murder  claim,  and  the 
evidence  tends  to  show,  that  the  two  persons  jointly  indictoa 
with  them,  but  not  apprehended,  v/ere  the  yuilty  parlies,  it  ia 
prejudicial  error  for  the  court,  during  the  closing  argument  IDr 
the  People,  to  grant  the  State's  attorney's  motion  to  enter  a  uolte 
prosequi  as  to  such  parties,  made  with  the  remark  that  there  was 
nothing  in  the  defendants'  contention  that  any  one  else  than 
themselves  committed  the  assault. 

5.  Rule  as  to  assaults  upon  persons  in  feeble  condition. — If  one  who 

Is  enfeebled  by  disease  is  unlawfully  assaulted,  and  an  injury 
is  inflicted  upon  him  which  is  mortal  to  him  in  his  enfeihlcii 
conditon  although  it  would  not  have  been  mortal  to  a  man  in 
good  health,  his  assailant  is  deemed,  in  law,  to  be  guilty  uf  mur- 
der or  manslaughter,  as  the  case  may  be,  notwithstanding  ho  did 
not  linow  of  his  victim's  physical  condition. 
C.  When  blow  is  regarded  as  the  cause  of  death — when  not. — If  a 
blow  so  afforts  a  person  that  he  is  unable  to  stand,  and  in  conse- 
quence thereof  falls  to  the  pavement  and  death  results  from  tlie 
fall,  the  blow  is  regarded  as  the  cause  of  death;  but  if  the  in- 
ability to  stand  arises  wholly  from  one  or  more  of  the  deco  iseil's 
phytiical  infirmities  or  from  intoxication,  and  such  inability  lo 
stand  was  not  contributed  to  by  the  blow,  then  his  death  should 
be  attributed  to  natural  causes. 

7.  Age  of  prisoner  at  time  sentence  is  passed  controls  place  of  con- 

finement.— It  is  the  age  of  the  offender  at  the  time  it  becomes 
necessary  to  determine  the  place  of  his  detention  which  governs 
as  to  his  being  sentenced  to  the  penitentiary  or  the  reformatory, 
and  not  his  age  when  the  crime  was  committed. 

8.  When  it  is  error  to  give  Instriictions  as  to  rule  of  princii)als  and 

accessories. — It  is  error  to  give  instructions  as  to  the  rule  relat- 
ing to  principals  and  accessories  where  the  record  is  barren  of 
any  evidence  upon  which  to  Dase  the  same. 

Writ  of  error  to  tlie  (^'riuiiiial  Court  of  Cook  couiilv;  tlic 
11(111.  Jesse  Holdom,  Jiidiio,  presiding. 

fl(iliii  ('r.iiiiiiiglijiin  iiiid  .Inlm  Callahan,  convicte<l  nl'  niaii- 
sltmgliter,  bring  error.     IJeverscd. 

-1.  J.  Ilanlon,  and  John  Pfciffcr,  for  plaintifTs  in  error. 

//.  ./.  IlamVm,  Attorney  General,  {Charles  S.  Dciieen.  State's 
Attorney,  and  Harry  Olson,  of  counsel)  for  the  People. 

Wr.  Ji'sTicK  B()<i(fs  delivered  the  opinion  of  the  court : 

An  indictment  was  returned  into  the  Criminal  Court  of  Cook 


»r  from  the  fall 

prosequi  during 
claim,  and  the 
jointly  Indiftetl 
y  iiailies,  it  is 
g  argument  for 
to  enter  a  nolle 
:  tliat  there  wasi 
one   else    than 

in. — If  one  who 
and  an  injury 
I  his  enfeebled 
il  to  a  man  in 
!  guilty  of  miir- 
5tanding  he  did 

rhen  not. — If  a 
1,  and  in  eonsje- 
esults  from  the 
but  if  the  in- 
I  tlie  doceised's 
eh  inability  lo 
Is  death  should 

s  place  of  Con- 
ine it  becomes 
which  governs 
18  reformatory, 

princi])als  and 
the  rule  rolat- 
d  is  barren  of 


coiinly;   the 

?te<l     of    lIKlll- 

n  error. 


^neen,  State':- 
*t()plc. 


!  courf : 

\)urt  of  (/<)(ik 


CUNNINGHAM  v.  PEOPLE 

County,  cliargino'  the  plaintiff-s  in  error,  John  Cnnningliani  and 
John  CaUahan,  and  two  other  persons,  nanu  ly,  Harry  A.  Tav- 
lor  and  Patrick  Kane,  with  the  crime  of  ninrder  in  the  killing- 
of  one  Peter  Ilartman.  Taylor  and  Kane  were  not  ajipve- 
hended,  hut  the  plaintiffs  in  error  were  placed  on  trial  iK-fove 
the  court  and  a  jury  in  said  Criminal  Court,  and  were  ad- 
judf^'od  guilty  of  the  crime  of  manslaughter,  and  condenmed 
to  be  imprisoned  in  the  State  penitentiary  at  -Toliet  for  an  in- 
definite period.  They  allege  that  errors  which  greatly  preju- 
diced their  cause  before  the  jury  intervened  in  the  hearing  of 
the  cause,  and  have  sued  out  this  writ  of  error  to  bring  the 
record  of  tlieir  conviction  into  review  in  this  court. 

The  indictment  contained  five  counts,  each  charging  the  said 
plaintiffs  in  error  and  said  Taylor  and  Kane  with  the  nnirdev  of 
said  Peter  irartman.  The  State's  Attorney,  however,  elected 
to  proceed  to  trial  on  the  first  and  tiftli  counts  only.  The  first 
count  charged  the  said  four  parties  accomplished  the  death  of 
said  Ilartnum  by  "striking,  beating,  pushing  and  shoving  him" 
with  their  "fists."  The  fifth  count  charge(l  that  said  indicted 
parties  made  an  assault  upon  said  Ilartman  "in  some  way  and 
manner,  and  by  some  means,  instruments  and  weapons,  to  the 
grand  jurors  unknown,"  and  killed  and  nuirdered  him. 

The  testimony  of  llattic  Keed  and  Daisy  I)rununond  was 
relied  u|)(!n  by  the  People  to  show  the  circumstances  of  the  kill- 
ing of  Ilartman,  and  that  of  llattie  Keed  alone  to  identify  the 
plaint ilfs  in  error  as  the  parties  who  took  his  life.  Her  al)ility 
to  kiKiw  they  were  the  persons  who  assaulte<l  Ilartman,  and,  in 
brief,  the  ndiabilily  and  value  of  her  identification  of  the  ])lain- 
tilfs  in  error  as  the  guilty  parties,  lx!canie  of  the  utmost  import- 
Awco  in  the  investigatiim  before  the  iury.  In  the  view  we 
have  taken  of  the  case,  the  cause  must  be  again  submitted  to  a 
jury  for  trial,  and  for  that  reason  we  shall  refrain  from  com- 
menting upon  the  testimony,  except  so  far  as  it  may  be  necessary 
in  passing  u})on  the  matters  assigned  as  for  error;  and  nothing 
here  said  is  intended  to  reflect  the  views  of  this  court  as  to  any 
matter  of  fact  herein  involved. 

llattie  Keed,  a  colored  woman,  testified,  in  substance,  that  on 
Sunday,  the  KJth  day  of  September,  1900,  between  the  hours 
of  12  o'clock,  noon,  and  1  o'clock  p.  m.,  she  was  employed  as  a 
chambermaid  in  the  Kensingt<in  Tlotel,  in  the  city  of  Chicago, 
and  was  engaged  in  "cleaning  up"  one  of  the  rear  rooms  on  the 


11 


1? 


11 


!'■  ■ 


■■V   \  I'    b 


.iiif  'I 


U 


jii    ':  '  :]   ijj; 

.:|   ;  I .  J  '■■■ 


:l  •    t 


1 1; 


656 


AMERICAN  CRIMINAL  REPORTS. 


iiii: 


H 


fourth  floor  of  the  building,  known  ns  "Room  Xo.  4S";  tliat 
thoro  were  two  windows  in  the  room,  both  opening  -niton  the 
alley  which  h'ads  north  from  Harrison  to  VanBuren  street,  in 
the  bloek  l)ouii(U'd  on  the  east  by  State  street,  on  the  west  hy 
Dearlxirn  street,  on  tiie  south  by  Harrison  street,  on  the 
north  hy  ^'an  Buren  street;  that  immediately  adjoining,' 
room  L\o.  4^^  on  the  north  there  was  another  room  ot' 
the  hotel,  wliich  also  had  a  window  opening  on  tiie  alley,  from 
wliieh  latter  window  an  iron  fire  escape  led  down  into  the  alley; 
that  while  the  witness  was  so  engaged  she  te«tifled  she  heanl 
some  one  down  in  the  alley  cry,  "Help!"  and  she  looked  from 
the  north  window  in  room  Xo.  4S,  through  the  fire  escape,  into 
the  alley,  and  saw  three  persons  on  the  west  side  of  the  alhy, 
some  ')0  feet  to  the  north  of  her  position.  She  then  had  no 
accpuiintance  with,  or  had  ever  seen,  either  of  the  plaintilVs 
in  error.  Her  statements  as  to  what  she  saw  are  abstracted 
as  follows:  "Wlien  I  looked  out  of  the  window,  I  saw  llircc 
men.  One  was  sitting  against  a  barrel  in  the  corner;  one  was 
sitting  on  the  ground,  and  had  the  old  man  down  between  his 
knees;  and  the  other  fellow  had  his  hamls  around  the  <ild 
man's  neck,  and  was  choking  him.  The  two  men  I  sec  here 
in  court.  This  one  (indicating  Callalian)  had  the  old  man 
between  liis  knees.  ]Ie  kept  his  hands  aroinid  the  old  man's 
neck,  and  this  one  at  the  chair  was  going  into  the  old  man's 
pockets.  He  took  something  out  of  his  pocket  and  ])Ut  it 
in  his  own  ])ocket;  but  1  didn't  know  what  it  was.  The  old 
nuin  raised  up  his  hands  like  this,  and  this  man  (indicating 
Cunninghi.ni)  struck  him  once  Ijcsidc  the  head  with  his  iist. 
After  he  ])iit  his  hand  in  the  old  man's  pocket,  they  ran  down 
the  alley,  south.  Then  the  old  man  gnt  up  ajid  started  !• 
walk,  and  he  slaau'ered  and  fell  in  the  middle  of  the  allev,  I 
stayed  there  until  after  the  jtatml  wagnii  came.  A  crowd  gath- 
ered, and,  before  the  wagon  came,  sduie  men  picked  him  u|» 
and  sat  him  against  a  barn  dooi*.  'J'he  old  man  had  on  tan 
shoes,  light  overcoat,  and  light  hat.  Cunningham  had  on  a 
blue  suit,  and  the  other  one  ha<l  on  light  ])ants  and  black 
coat.  WIku  1  saw  Callahan  at  the  station,  he  had  on  a  d:irk 
suit.  The  man  I  saw  in  the  alley  had  <>n  a  light  suit.  The 
old  man's  head  was  to  the  north  when  he  fell.  When  tliey  had 
his  head  between  the  man's  knees,  he  M'as  facing  north,  towards 
Van  Buren  street, — his  back  to  me.     They  wore  there  five 


■r«F»» 


CUNNINGHAM  v.  PEOPLE. 


G57 


minutes  nftor  I  went  to  the  window,  (^illalinn  was  lo(,l<ln.r 
north,  and  kept  that  i)ositi.,n  all  the  time,  lie  was  a  st'tilc'd 
man— the  man  I  call  the  '(,!(!  man.'  1  don't  know  abont  h.,w 
old  la;  was.  I  don't  veniemlx-v  whetlier  his  haiv  was  grnv  or 
not.  lie  liad  a  heard.  I  (h^n't  know  what  color.  I  saw  his 
fae(>  when  he  p;ot  np.  T  jiad  a  jiood  viow  of  it.  Tlicrc  was  no 
hlnod  upon  his  faee.  When  he  first  i-ct  up,  he  started  towards 
Van  IJiiren  street.  I  don't  know  how  far  he  walked  Ix^fure 
he  fell  in  the  middle  ..f  the  alley.  JIo  fell  forward  on  iiis 
faee.  Ho  remained  on  his  faee  while  I  was  there.  Xolxidy 
turned  him  over.  1  don't  know  how  loner  he  lay  there  before 
they  pieked  him  np  and  set  him  aj-ainst  tlie  wall.  I  could  not 
recognize  the  persons  who  picked  him  np.  1  'didn't  sec  whether 
the  old  man  had  a  mnstache  or  not.  I  only  saw  one  bbiw 
strnek  with  the  list.  All  the  time  I  saw  the  men  seutlling  in 
the  alley,  the  other  two  men  had  their  hats  on." 

As  before  Htate<l,  the  rear  of  the  Kensinoton  Hotel  was  pro- 
vided with  an  iron  lire  escape.  It  reached  the  fonrth  floor 
at  a  window  innntdinfely  north  of  that  throniih  wliich  the  wit- 
ness llattie  Keed  was  Idokini;'  when  she  saw  the  occnrrenccs 
in  the  alley,  .'»()  feet  to  the  north  of  her  position,  and  across 
the  alley.  The  fire  escajK'  was  composed  of  iron  rods,  and 
snpplied  with  an  ir^n  platform  at  the  window.  I'he  floor  of 
the  platform  was  not  solid,  but  there  wore  small  holes  throuiih 
it.  'J^he  platform  extended  to  within  0  or  8  inches  of  the 
north  side  of  the  window  at  which  the  witness  llattie  liee<l 
stood,  and  at  the  same  level  as  the  bottom  of  rlie  window.  As 
to  the  obstrnetion  to  her  view  caused  by  this  lire  escape,  the 
witness  stated:  ''There  is  a  tire  escai)e  just  north  of  the  mid<l!c 
v/indow,  between  nie  and  the  point  I  \,as  looking-  toward  at 
the  time.  1  was  lookiiii;'  to  the  right, — north.  I  was  looking 
thronii'h  the  fire  escape.  The  fire  esca]ie  extends  from  the  t(  p 
lh)or  of  the  bnildinji'  to  the  first  floor  al)ove  the  iiround.  The 
three  men  were  on  the  west  side  of  the  alley,  abont  fifty  feet 
north  of  my  window."  As  further  bearing'  npon  lier  ability 
to  recognize  the  i)laintiirs  in  error,  she  further  testified:  "About 
a  half  an  hour  after  the  patrol  wagon  took  the  body  of  the  old 
nniu  away,  the  same  two  boys  came  back  into  the  alley  again, 
and  were  inquiring  what  had  taken  ]flaco.  They  were  pretty 
close  to  the  man  they  spoke  to,  and  just  asked,  'What  had  oc- 
curred V     They  were  standing  right  under  my  window.    They 

Vol.  XIII  -42 


i  il' 


!    t 


I    . 


'  'i    i 


u 


;i ;  w\ 


i 


658 


AMERICAN  CRIMINAL  REPORTS. 


didn't  spoak  very  loud  when  they  asked  the  man  the  qnoslidn. 
I  was  on  the  fourth  floor  of  the  huilding.  I  heard  what  tin  \ 
said.  They  were  riglit  unck'r  my  windciw  all  the  lime.  T  saw 
their  faces.  They  heard  me  talking,  and  l(K>ked  up.  I  win 
talking  to  Daisy  Drunuiiond.  She  was  looking  out  of  the 
window  under  mine  when  the  two  men  came  hack,  and  1  wih 
talking  to  her  at  the  time.  She  was  on  the  first  fltwir  of  the 
hotel.  I  said  to  Daisy,  'There  arc  the  same  two  men,  and,  if  1 
saw  an  officer,  I  would  tell  him  to  take  them.'  " 

Daisy  J)rummond  denied  that  the  conversation  detailed  hy 
the  colored  woman,  Ilattie  Reed,  occurn'd  iM'tween  theni.  As 
to  this  she  testified:  "I  did  not  talk  with  the  colored  Avnmaii 
(Ilattie  Kecd).  I  did  not  know  she  was  there.  She  did  imf 
say  to  me:  'There  are  the  same  two  men.  If  I  saw  a  ixilicc- 
man,  I  would  have  them  arrested.'  "  Daisy  Druiiimond  fiii- 
iher  testified:  "I  was  living  at  the  Kensington  Hotel,  'M)-2  and 
304  State  street,  Septemher  10th  last.  1  saw  two  hoys  (u- 
men.  When  I  went  to  the  window  they  were  holding  a  uiim 
hetwecn  them,  some  way.  The  old  man  Avas  silling  down  in 
a  doorway,  and  the  shorter  of  the  two  lK)ys,  I  think,  was  hold- 
ing his  head.  The  other  v;as  kind  of  kneeling  over  him,  atid 
the  one  that  was  kneeling  over  him — I  don't  know.  He  nindc 
a  motion  as  if  to  take  something  from  the  nuin's  pockets,  and 
he  put  it  in  his  own,  and  they  were  in  that  position  jiisl  a  feu- 
moments  or  so,  and  the  one  kneeling  over  him  struck  him,  and 
they  both  ran  down  the  alley.  lie  struc.'k  him  with  his  list,  a> 
I  saw.  They  went  towards  Harrison  street,  soulli.  I  was  in 
my  room  at  the  time,  looking  out  of  the  window.  My  nxmi 
was  on  the  second  floor.  I  saw  the  Reed  woman  afterward-; 
yes,  sir.  I  was  in  ro«nn  32  of  the  Kensington  Hotel,  302  Stale 
street.  I  was  south  in  the  alley  from  this.  It  happened  acro-s 
the  alley, — north;  opposite  side.  1  don't  know  how  far.  Ir 
was  further  than  across  this  room.  After  they  left  the  old 
man,  ho  sat  a  moment,  then  got  up  on  his  feet,  and  he  kind  of 
put  his  hand  up,  as  if  going  to  fall.  He  put  his  hands  up, 
and  fell  down  on  his  head,  to  the  north,  lie  fell  out  from  the 
doorway  in  the  alley.  His  face  was  on  the  pavement.  He  lay 
on  his  face.  It  looked  to  mo  like  a  hlow  of  the  fist — just  like 
you  would  strike  a  person.  That  was  all  I  saw.  When  he 
was  first  struck,  he  didn't  get  right  up  for  a  moment.  He  sat 
there  in  the  position  he  was  sitting  in  when  they  ran  away.    He 


CUNNINGHAM  v.  PEOPLE. 


059 


foil  on  his  face.  Tlio  ullcj  is  paved.  1  saw  tho^Davin^^  stono^ 
1I(>  seemed  to  fall  very  hard.  I  loft  the  window.  When  I 
came  hack,  some  men  had  pnt  him  up  in  lIi,;  doorway.  lie 
had  taken  a  few  steps  ont  of  the  doorway  when  1  tirst  saw  him, 
wh(  u  he  fell.  I  didn't  notice  how  ho  was  dr.-ssed.  One  of  the 
other  men  had  on  lit.ht  or  f-ray  pants,  dark  coat,  and  the  other 
was  entindy  in  Mack.  \  would  not  ho  ahle  to  identify  tlie  men. 
I  thitik  they  came  hack  np  the  alloy  and  sto(.d  t'hon..  Of 
course,  I  am  not  sure  they  were  the  same  oii.-s.  I  thought  they 
were,  on  account  of  iKMiif?  drossed  alik(\  Thoy  were'^dressecl 
so  near  like  the  other  men,  I  thou<;ht  they  were' the  same  ones. 
1  could  not  see  their  faces,  lK'ca\ise  1  was  up  («ver  them.  The 
men  eamc  back  Ixd'ore  the  police  came,  an<l  the  police  came 
live  minutes  after  it  happened.  'J'hey  returned  within  live 
minutes  after  it  happened." 

"J'he  plaintiffs  in  error  each  tcstilied,  and  they  wore  fully 
(sross-exandned.  In  substance  their  testimony  was  that  thoy 
were  in  the  alley  in  question  on  the  day  of  iho  death  of  Ilart- 
man.  Thoy  testilied  they  were  drinkini;'  heer  ont  of  a  can,  and 
were  in  the  rear  of  Xos.  310  and  ',]\2  State  street,  at  a  point 
alwiut  100  feet  or  more  south  of  the  jioint  in  the  alley  where 
llartman  was  assaulted,  as  testilied  to  hy  the  witnesses  for  the 
re<i|)le,  Jleed  and  Drumniond,  and  that  tiny  saw  Harry  A. 
Taylor  (the  same  Taylor  who  is  charged  in  the  indictment  with 
the  murder  of  llaitman)  in  the  alley  with  a  drunken  man; 
that,  wdien  said  Taylor  and  the  intoxicated  man  were  in  the 
rear  of  2t)8  State  street  (a  saloon),  they  saw  Patrick  Kane 
(also  indicted  in  the  same  indictment)  come  out  into  the  alley 
from  the  rear  of  another  saloiJii,  and  Kane  ivud  Taylor  seemed 
to  ''scutlle  or  wrestle  aroimd"  with  the  drunke';  man;  thai  they 
heard  the  cry  for  help,  and  started  north  np  t!ic  alley,  toward 
the  scene  of  the  all'ray;  and  that,  fearing  they  would  he  ar- 
rested for  "canning  beer"  in  the  alley,  thoy  lurned  about  to 
the  s(nith,  and  went  into  the  rear  of  a  saloon  at  olO  State  street, 
and  afterward  went  riding  on  Ihe  lake  in  a  Ixjat.  Th(>y  testilied 
that  wdiile  in  the  alloy,  and  lM>fore  the  drunken  man  cried  for 
help,  some  one  threw  some  water  from  a  window,  and  it  fell 
upon  them,  and  that  (^allahan  angrily  inquired  who  had  thrown 
out  the  water;  that  one  William  llackett  appeared  at  the  open 
window,  and  Cunningham  recognized  him,  and  asked  him  to 
come  down  and  have  a  drink  with  them.     They  both  denied 


fv 


<  I 


!  1 


i^itstt^jgitaftiigMjfe!!Bejjj/i..' 


660 


AMERICAN  CRIMlNi^L  UEPORTS. 


flint  they  nssnnltcd  the  ninn  TTartnuui,  (ir  had  niiy  cnnnoptinn 
witli  the  assault  made  upon  liiiii. 

I'laiiitiil's  ill  error  were  ('(irrolioratcd  liy  the  testimony  of  smkI 
William  Ilaekett,  a  witness  produced  in  llieir  heliait'.  lie  tesii- 
ticd,  in  substance,  as  follows:  "Last  Septeniher  KItli  1  wns 
Hviiif;  at  the  Uoyal  liooiniiij;'  IIoiis(>,  iUYA  State  street.  I  wns 
there  that  day  lielween  Iwelvct  and  one  o'clock.  It  fronts  oii 
Slide  street,  and  runs  west  to  the  alley.  It  is  in  the  siiiiic 
liloek  with  the  Trocadero  Tlieater,  and  those  saloons  iJ'.MI  lunl 
i".>S,  and  other  saloons.  On  Septenilier  Kith  last  I  was  in 
the  washroom  of  the  rooniin;^'  house.  The  washroom  is  i;i  ilic 
rear,  on  the  first  floor,  on  this  alh-y.  I  was  takinjn"  a  wash,  :\\\'\ 
heard  loud  talking'  in  the  alley.  I  looked  out,  and  saw  soine 
parties  and  Cunniniihani  and  Callahan.  I  threw  a  ciij)  of  wah  ;• 
out  on  this  .lohn  Cuniiiiiiihani, — the  same  on(>  who  sits  rii:lii, 
<tver  there.  I  threw  a  cup  of  water  on  this  younj;  man,  aiul  (iiie 
of  them  made  the  remark,  'Who  do  you  suppose  that  son  of  m 
liitch  is  f  1  steppeil  hack  for  half  a  minute,  and  then  1i:okii1 
<»ut.  They  looked  up  aiul  recogni/ed  me,  and  aske<l  me  lo 
conio  downi  and  have  a  drink  with  them.  They  were  drinking 
iK-er.  This  was  hetween  twelve  and  one  o'clock.  I  washeil 
myself,  and  while  I  was  shining  my  shoes, — there's  a  window 
sill  there  about  two  feet  high,  right  to  the  rear, — I  heard  some 
one  li(dler,  'Jlelp!'  I  heard  it  the  second  time.  .Ml  I  iiad  to 
do  was  to  bond  over  an<l  look  out  in  this  all(>y.  I  looke<l  up 
the  alley,  I  judge,  some  two  hundred  feet.  I  saw'  what  1  sup- 
posed was  a  tight  from  the  distance,  on  the  west  a'uh.  of  the 
alley,  about,  I  judge,  two  hundred  feet  north  of  me.  It  lasted 
a  minute  or  so,  and  1  saw  two  ])eople  disappear  from  then'. 
I  saw  a  crowd  gather.  I  finished  my  shoes,  and  went  out  the 
front  way  to  Van  iJiiren  sti-eet,  ami,  as  I  got  to  the  alley,  soiin' 
one  saitl,  'There's  a  man  dead.'  I  went  up  the  alley,  and  saw 
the  dead  man.  As  I  looked  (Uit  of  the  window  and  saw  th(> 
fight  up  the  alley,  Cunningham  and  Callahan  were  about  !'• 
or  50  feet  from  nie.  When  they  saw  the  fight  they  started 
down  that  way.  As  I  looked  out,  I  saw  them,  but  my  atten- 
tion was  called  further  up  the  alley.  Cunningham  and  Calla- 
han were  under  the  window  where  I  was,  about  forty  or  fitly 
feet  away  from  rae,  at  the  time  the  fight  was  going  on.  One 
of  the  parties  down  the  alley  in  the  fight, — one  of  those  who 
disappeared, — had  on  a  light  coat, — it  looked  like  an  over- 


CUNXIXGHAM  v.  PEOPLR. 


CGI 


oont,— nri.l  tlio  otlior  wan  .Ircss,.]  i„  ,I„,.k.  i;,,,],  „,•  „„,  ,„^,^ 
w.-(.  Uu-nw  Hum  tlu-sc  „„,,  1,,.,,.,— l.ino,,  ,1,,,,,  ,  ,„„  ,,,,^^^. 
.lisi.piK'i.re.1  iKTcss  the  .illcy,  „u  tl..-  cnst  si,|r.  I  ,,,„|,1  .s,.f,  v\.,\[r 
•  lown  the  iillcy,  an.l  it  lii-t.Ml  no  tiiii,'  aflcr  I  li<.|inl  tli..  seen,,,! 
iK'lIcr,  tind  these  men  .lisnppeiire.!  fr,,„i  tliis  iiinii  Hint  -ni  |;iii,„|, 
I  saw  the  Ixidv  lyiiifi'  there  aftenvi.nis  at  tlie  same  phiee  wliciv 
1  saw  the  fiji'ht.  I  jtist  t.M.k  a  I-.nk  i,t  liim,  ..„i<l  walked  awav. 
Tho  wiii(h)W  was  (.|)eii,  and  I  was  shinini-'  my  slioes  there.  I 
saw  ('ininin<>Iiani  and  ("alhdian  have  ii  eaii  there.  They  were 
drinking'.  It  was  two  or  three  nunntes  from  the  time  that  I 
threw  the  water  out  of  the  wimh.w  until  I  heard  the  tirst  crv 
1"or  help.  Cnnnin^ham  and  Calhdian  nsed  to  como  to  the 
saloon  when  I  tended  har.  1  ditbrt  know  Canaluui's  last  nam(>, 
an<l  only  knew  Cunnindiiiin  as  'John.'  That  is  Cunniii-iliam 
and  this  is  Callahan,  here,  as  1  understand.  I  was  not  on 
speakin-i'  t^-rnis  with  them.  It  was  two  or  three  years  this  win- 
ter that  I  first  saw  thein.  As  I  looked  up  tho  alley,  T  supposed 
it  was  a  ii/iht.  There  were  three  pcnpk.  iu  the  ii,iiht.  They 
tlisappeared  from  th(>  man,  and  started  aeros^-.  the  alley.  At 
the  time  of  tlu!  trouhle  thes(>  two  men  (indieatiii,<>),  Cunnin^- 
liani  ami  Callahan,  were  under  the  window,  and  they  staried 
towards  this  trouhio  after  the  hollering.  1  don't  know  whether 
they  i>'ot  there  or  not." 

It  will  1k'  ohserwd  that  the  eiroumslanees  of  the  assault  upon 
llartman,  and  that  it  was  partieipated  in  hy  hut  two  [)ersons, 
are  detailed  with  suhslantial  aeeord  hy  the  witnesses  for  the 
People,  Ilattie  Ifeed  and  Daisy  Drunmiond,  and  hy  the  plaiu- 
titVs  in  error  and  the  witness  in  their  helialf,  William  Ilackett. 
Xeither  of  the  witnesses  for  the  jteople,  Ilattie  Heed  nor  Daisy 
Drumniond,  was  ae(puiinted  with  the  i)laintitl"s  in  error,  or 
eith(>r  of  them.  Daisy  Drumniond  at  no  time  assumed  to 
identify  either  of  the  plainliifs  in  error  as  heing  the  ])artics 
she  saw  enuaged  in  the  aifray  or  seutHe  in  the  alley;  hut  testitied 
she  could  not  identify  the  plaintiffs  in  error  as  heing  tho  ])ar- 
tie.s.  The  identitieati(m  of  the  plaintiffs  iu  error  as  heing  the 
assailants  of  llartman  rested  wholly  npou  tho  testimony  of  the 
eoh)red  woman,  Ilattie  Keed.  It  was  ahs(dutely  inconsistent 
with  the  testimony  of  the  witness  William  Ilackett,  and  also 
with  that  of  the  plaintiffs  iu  error.  She  testified  that  she  Inul 
no  acquaintance  with  either  of  the  plaintiffs  in  error,  and  had, 
so  far  as  she  knew,  never  seen  them,  or  cither  of  them,  prior 


! 


i 
i 

I 

.     ! 


M 


.ii! 


662 


AMERICAN  CRIMINAL  REPORTS. 


to  the  day  she  saw  the  occurrences  in  the  alley  to  which  Aw 
testified,     ller  point  of  view  at  that  time  was  from  a  wiiiddw 
four  stories  above  the  alley  where  the  deceased  and  those  who 
assaulted  him  were  engnged  in  the  aiTray.     She  was  hHikiiiM 
down  upon  them  through  the  fire  escape.     She  testified  tluit 
the  person  siie  identified  as  Callahan  was  looking  to  the  north, 
and  kept  in  that  position  all  the  time.     She  was  Kwking  truin 
th''  south,   and  consequently  had  no  view  of  his  face.      The 
person  whom  she  identified  as  the  deceased  she  called  an  ''old 
man,"  and  said  he  wore  a  beard,  but  she  could  not  say  whether 
ho  had  a  mustache  or  not.     lie  was  31  years  of  ago,  and  wms 
smooth  shaven,  save  a  mustache.     She  testiiied  that  the  "old 
man,"  as  she  denominated  the  deceased,  had  on  a  light  ovcreoiit. 
The  driver  of  the  patrol  wagon  who  removed  the  Ixidy  testitie(l 
that  he  had  a  sack  coat,  and  no  overcoat.     The  plaintill'  in  ermi- 
Cunningham  testified  that  it  was  Patrick  Kane  who  had  on 
the  light  overcoat.     The  witness  llattie  Kced  testified  that  the 
two  men  she  saw  assault  Ilartman  canu^  again  into  the  alhy, 
nearer  to  the  window  from  whicii  she  was  looking;  that  she 
saw  them  and  recognized  iIkmii,  and  called  the  attention  of  the 
witness   Daisy   Drummond  to  them,  and  said  to  ^fiss    Drtnu- 
mond,  ^'There  are  the  same  two  men,  and,  if  I  saw  a  police  num. 
I  would  tell  him  to  take  them."     Daisy  Drummond  denicMJ  that 
any  such  conversation  occurred,  and' testified  that  she  saw  the 
same  two  men  in  the  alley  a  second  time,  but  would  not  idtMitit'v 
the  plaintiils  in  error  as  being  the  parties,  though  she  was  in 
a  lower  story  of  the  hotel  than  was  llattie  Heed,  and  certainly 
nearer  to  the  parties  in  the  alley.     It  was  proven  that  at  the 
in(piost  held  over  the  Ixxly  of  the  deceased,  Ilartman,  on  ^Ion- 
day  following  the  day  of  his  death,  a  photograph  of  Harry  A. 
Taylor,  the  person  wiio  stood  indicted  for  the  murder  of  ilart- 
num  in  the  same  indictment  with  j)laintitfs  in  error,  was  shown 
to  said  llattie  lieed  while  she  was  testifying  as  a  witness  before 
the  coroner  and  a  jury,  and  that  she  te.stified  it  was  a  picture  of 
one  of  the  two  men  sIk;  saw  engaged  in  the  affray  or  scutlle  with 
Ilartman  in  the  alley.     As  to  that  incident,  said  llattie  Kenl 
testified  at  the  trial  in  the  Criminal  Court,  as  follows:    ''Yes; 
at  the  inquest  I  was  shown  this  photograph  (a  photograph  of 
♦Taylor,  which  counsel  had  handed  to  the  witness),  and  1  said 
it  looked  like  a  picture  of  the  man  who  was  on  top  of  the  (dd 


-*;»■?»" 


CUNNINGHAM  v.  PEOPLE. 


GG3 


man ;  and  I  now  say  it  looks  like  the  picture  of  the  man  I  saw 
un  top  of  the  old  man." 

The  plaintilfs  in  error  testified,  in  substance,  that  on  ]il(in- 
day  morning,  after  the  occurrences  in  the  alley  on  Sundav, 
they  were  brought  out  from  their  cells  to  be  shown  to  the 
witness  Ilattie  1{(  ed  and  other  witnesses,  to  see  if  such  witucssos 
could  identify  them ;  that  they  stood  in  the  presence  of  i^aid 
Ilattie  lieed  and  the  other  persons  (one  a  ilr.  Wilson)  for 
some  time,  and  that  neither  llatti  Keed,  nor  any  of  the  wit- 
nesses, said  or  did  anything  tending  to  identify  them;  that 
finally  some  one  asid,  "Turn  them  around,"  and  that  liis|K"ctor 
Ilartnett  said,  "What  the  hell  kind  of  identification  is  iliisi 
Take  them  out;"  and  that  they  were  taken  out,  but  were  subse- 
quently returned,  and  again  presented  to  Ilattie  lieed  for 
identification.  Inspector  Ilartnett  was  ])ruduced  in  rebuital 
as  a  witness  for  the  People,  and  his  testimony  upon  the  jiniut 
was  as  follows : 

"Q.  Did  you  shove  the  two  men  out  of  the  room  and  say, 
'What  the  hell  kind  of  identification  is  this  f 

A.    I  did  not  shove  them  out. 

The  Court :   Did  you  say  that  ? 

A.    I  said  this.     I  will  explain  myself. 

^Ir.  Olson :    You  can  explain  afterwards. 

Q.    Did  you  or  didn't  you  say  that  i 

A.  I  said  it  in  the  presence  of  ^Ir.  Wilson,  that  came  in  to 
identify  him.  There  was  a  man  by  the  name  of  Wilson,  who 
some  of  the  otficers  sent  in  to  me. 

Q.    Did  that  occur  in  Wilson's  presence? 

A.    Yes. 

The  (\)urt:  r>ut  the  colored  wonum  wasn't  there?  (Excep- 
tion to  the  question  of  the  court.) 

A.   .\o." 

This  renuirk  of  the  Court,  whether  regarded  as  a  statement 
of  fact,  intlicating  the  ojjinion  of  the  Court  that  the  witness 
Ilattie  Heed  was  not  present  fur  tho  purpose  of  identifying  the 
plaintiffs  in  error  until  after  the  otHcer  determined  that  i-iilH- 
cient  opportunity  had  been,  given  for  an  i.lentification,  and 
none  had  been  made,  and  that  the  prisoners  should  be  returned 
to  thi'ir  cells,  or  as  a  question  addressed  to  the  officer,  to  elicit 
a  reply  from  the  witness  k-aring  upon  tho  ])oint,  constituted 
error,  which,  in  its  elfojt,  may  have  been  so  prejudicial  to  the 


i  \ 


i    I    I.; 


-f  !  i; 


!•■,   i: 


If' 
II 

!;i 

n 


'1 


i 

I 


il 


i  t 


^    Ifi 


664 


AMERICAN  CRIMINAL  REPORTS. 


riglits  of  the  plaintiffs  in  error  upon  such  a  material  point  as 
to  call  for  a  reversal  of  the  judgment.  If  the  remark  is  to  be 
regarded  as  a  statement  indicating  a  condition  of  mind  or  Ixlic  f 
of  the  Court,  from  the  facts  involved  in  the  determination  of 
the  crucial  point  in  the  case,  viz.,  the  ability  of  the  witness 
llattio  Heed  to  identify  the  plaiutiiVs  in  error  as  the  gtiihy 
parties,  its  prejudicial  ell'ect  upon  the  minds  of  the  jury  is 
tdo  manifest  to  be  questioned  or  debated.  If  regarded  as  an  iii- 
terrogatnry,  it  was  leading  and  suggestive  to  such  a  degree  thiit, 
had  it  IxK'U  propounded  by  counsel  for  the  State,  it  would  have 
been  error  to  overrule  an  objection  to  il.  The  vice  of  a  lending 
(piesrion,  Avheu  pr(ii)ouu(led  by  counsel,  is  that  it  suggests  to 
the  witness  the  answer  which  is  desired.  When  i)ropi)nudcd 
by  \\\o  Court,  it  has  the  aiUlitional  vice  of  Ix'ing  understood  by 
the  jury  as  indicating  the  view  entertained  by  the  C(jurt  as  to 
the  fact  suggested  by  the  cpiestion.  llowi-ver  regarded,  it  oper- 
ated to  produce  the  positive  assent  of  the  inspector  to  the  state- 
ment of  fact  contained  in  the  remark  of  the  ccuirt,  that  tlic  wit- 
uess  Jlattie  Iteed  was  not  present,  and  had  not  st<io(I  in  \\h'. 
])i'esence  of  the  plaintitFs  in  error  for  the  purpose  of  ideiiti lying 
them,  without  nu;king  ruch  identilication,  until  the  ollicer,  be- 
lieving she  was  unable  to  do  so,  lunl  directed  the  phiintill's  in 
error  to  be  returned  to  their  cells.  That  the  n mark  of  the  Court 
had  an  imjjrojK-r  iniluence  mu  the  mind  oi"  llie  witness  is  un- 
mistakable. 'J'lie  witness  assented  that  the  I'aet  stated  l)y  the 
Court  was  true,  but  on  cross-examination,  in  ( tl'ect,  (lualitled 
his  assent  to  the  remark  of  the  (^)urt  to  tlu>  extent  of  suying 
hi'  could  not  remendxT  Avhelher  the  colored  woman  was  there 
or  not.  Tho  impression  to  be  nnnle  upon  tlie  minds  ot"  llie  jury 
by  the  testiuKjiiy  bearing  ujjon  the  (piestion  of  the  ability  <d' 
Jlattie  Jiced  to  recognize  the  i)laintilTs  in  error  to  be  the  persons 
whom  she  saw  engagetl  in  the  aflVay  with  the  deceased  was  of 
tiie  utmost  importance  to  the  riglits  of  the  ])laintitTs  in  error. 
If,  in  addition  to  all  the  other  circumstances  which  tended  to 
weaken  her  statements  that  she  could  and  did  recognize  the 
]»laintitFs  in  error  as  the  ])ersons  she  saw  when  looking  down 
from  the  window  in  the  fourth  story  of  the  hotel,  it  shonid  be 
nnide  to  apjiear  from  the  evidence  that  she,  when  brought  into 
the  inspector's  office  for  the  ])urpose  of  jiointing  out  the  plain- 
tiffs in  error  as  the  persons  she  saw  in  the  alley,  had  tin  ni 
brought  into  her  presence,  and  kept  there,  without  any  action, 


■■^^w 


\;i 


CUNNINGHAM  v.  PEOPLE. 


GG5 


words,  or  otherwise  on  her  part  indicating  recognition  of  tlicni 
juul  that  tlie  inspector  ordered  them  returned  as  not  ideutiiicd 
it  was  important  to  the  (k'velojmient  of  the  tnitli,  and  to  the 
preservation  of  the  rights  of  the  phiintiii's  in  ermr,  tluu  such 
fact  should  be  made  known  to  the  jury.  Was  j^he  in  the  in- 
spector's ofllce  while  the  plaintilFs  in  errur  were  kept  there  by 
the  insj)ector  for  identilieation  by  hrr,  and  before  lie  sdit  them 
out '(  was  a  question  for  the  determination  of  ihc  jury.  Wht'ther 
so  intended  oi;  not,  the  ex])ression  or  remark  of  the  Court,  even 
though  regarded  as  an  interrogatory,  strongly  indicated  the 
imjiression  of  the  Court,  gained  from  tho  evidence,  that  she  was 
not  present  until  after  the  inspector,  regarding  the  atten!])t  at 
an  idcntitication  as  having  failed,  had  removed  the  plaiiuitfs 
in  error  from  the  room  with  the  renuirk,  "What  the  licll  kind 
of  identification  is  this  i  Take  them  out," — and,  further,  was 
i-i»  suggestive  and  leading  in  form  as  to  fall  midcr  the  ban  of 
condemnation  for  that  reason. 

Counsel  for  plaintilfs  in  error  justly  prefer  a  complaint  that 
the  Court  by  another  remark  invaded  the  province  of  the  jury 
to  determine  a  question  of  fact.     It  a]ipeared  f"om  the  testi- 
mony of  the  Coroner's  i)hysician,  who  testiried  in  behalf  of  the 
I'eople,  that  the  only  evidence  of  external  violence  on  tin;  body 
of  the  deceased,  JIartman,  was  a  bruise  over  the  left  eye,  abotit 
one  inch  in  length,  anil  three-fourths  of  an  inch  in  width,  and 
another  small  bruise  on  the  bridge  of  the  nose,  and  that  neither 
of  such   injuries  was   a   mortal   \v(mnd.     The   said   phy>ician 
further  testified:    ''There  was  no  fracture  of  the  skull,  no  in- 
llannnation  of  the  wind[iiiie,  whatever.     I  f(tund  only  a  small 
bruise,   one  inch   long  by   three-quarters  wide,   over  the  outer 
cantlius  t»f  the  left  eye,  and  also  a  snudl  bruise  on  bridge  of 
nose.       Tlu!     brain     was     in     good     condition.      The     -^calp 
was     in    good     condition,     and    there    was    no    fracture    of 
the     skull.      The     injuries     may     have     produced     syncope. 
Syncope  is  a  cardiac  failure  of  the  heart.     I  thiid';  it  did  in 
this  case.     The  shock  wouhl  atfect  the  wlade  systein,   but  its 
nuiin     portion     would     be    on     the    nervous     system.      There 
would  be  no  trace  of  shock.       ]Jeside6  the  injury,  1  f<jiind  a 
large  cystic   kidney.      A   cystic  kidney   is  where  kidnesx  are 
liUed   up  by  albumen  and  saline  nuUter,  and  otherwi-^e  there 
is  a  failing  in  the  color  iluids.     The  right  kidn(>y  was  eidarged 
to  twice  its  normal  size,  and  performed  the  functions  fir  both 
kidneys.     The  left  kidney  was  totally  destroyed  by  cystic  de- 


1 

i 

1       , 

1 

I      1 

1 

ri 

i 

:      i" 

''  !iil 

1 

•■1 

i 

ii 

t 

?■ 

& 

;J 

■  ( 

i 


1- 


^-^ 


666 


AMERICAN  CRIMINAL  REPORTS. 


generation.  The  stomach  showed  evidence  of  chronic  gastritis. 
It  was  inflamed,  and  had  old,  dark,  and  possibly  alcdluilic 
streaks.  The  stomach  indicated  he  was  a  man  who  drank.  1 
found  the  liver  fatty  and  containing  dark  blood,  and  tlu'  licurt 
quite  largo  and  fatty.  The  heart  indicated  that  there  nuiv  lie 
a  weakening  of  the  heart  at  times.  The  lungs  were  dropsiml, — 
water  soaked  and  congested.  This  would  indicate  that  the  I'ir- 
culatiou  might  bo  im2)eded.  The  condition  of  the  kidneys 
would  i)roduce  that.  I  c(juld  not  say  whether  people  die  .-iid- 
denly  froin  it  or  not.  With  the  heart  enlarged  and  fatty,  a 
man  could  druj)  dead  from  any  excitement, — of  running  nt'icr 
a  street  car  {>r  walking  upstairs.  Any  degree  of  excitciiiciit  at 
all  is  liable  tit  produce  sudden  death.  Gastritis  produci^  an 
inflanmuition  of  the  stomach,  and  the  whole  system  is  atViH-ud. 
The  elements  that  were  found  in  this  Inxly,  of  fatty  (Irgcncia- 
tion  of  the  heart,  and  lungs  water-soaked  and  conjcsted,  juay 
produce  suilden  death.     The  conditions  there  may." 

The  testimony  of  Daisy  Drummcnid,  so  far  as  it  bore  iijioii 
the  injuries  inilicted  upon  the  deceased  by  whomsoever  as- 
saulted in  the  alley,  was  that  he  was  struck  with  a  bK»w  of  tlifi 
fist.  She  fiirtlur  testified:  "When  lie  was  first  struck,  Ik; 
didn't  get  right  up  for  a  moment,  lie  sat  there  in  the  ])ositi(iii 
he  was  sitting  in  when  they  ran  away,  lie  fell  on  his  lace. 
The  alley  is  paved.  I  saw  the  paving  ston{>s.  lie  seennil  to 
fall  very  haid.  After  they  left  the  old  man,  he  sat  a  mo- 
ment, then  got  up  on  his  feet,  and  he  kind  of  i)Ut  up  his  liand 
as  if  going  to  fall,  lie  put  his  hands  uj),  and  fell  down  on  liis 
head,  to  the  north,  lie  fell  out  from  the  doorway  in  the  alley. 
His  face  was  on  the  pavement.  He  lay  on  his  face."  lianic 
Reed,  aft(>r  stating  that  llartman  received  a  blow  on  his  luail 
with  a  fist,  testified:  "Then  the  old  nnui  got  uj)  ami  staiUMJ 
to  walk,  anil  be  staggered  and  fell  in  the  middle  of  the  alley.  I 
don't  know  how  far  he  walketl  Ix-fore  he  fell  in  the  middl.'  of 
the  alley.  lie  fell  forward  im  his  face."  The  testinmny 
showed,  without  controversy,  that  the  alley  was  paved  with 
cobblestones. 

The  ti  ndency  of  ilie  testimony  of  all  the  physicians  who  lesli- 
fied  in  the  case,  both  on  behalf  of  the  People  and  of  the  plain- 
tiffs in  error  was  to  the  effect  that  the  vital  organs  oi'  I  he 
deceased,  llartman,  were  so  affected  by  disease  as  to  cause 
death  at  almost  any  time;  that  any  kind  of  emotion,  excite- 


CUNNINGHAM  v.  PEOPLE. 


667 


iiipiit,  or  exercise  might  prove  fatal  to  him.  Tlie  pliy^iciiiym  all 
iilireofl  that  the  hruiscs  were  not  of  thcnisolvcs  .siiJli^ii  r,r  to 
caiiso  the  death  of  a  person  in  a  normal  condition  (if  licaltli, 
hut  also  all  were  of  the  opinion  that  a  very  sjiglit  ^^Imck  tn  his 
nervous  system,  pi'oduced  hy  any  cause,  might  properly  l;(>  re- 
garded as  a  contrihutory  element  to  the  cause  of  dealli.  Ciuu- 
sel  for  the  People,  in  their  hrief,  state  their  position  npiii  tiio 
point  as  follows:  "It  was  the  contention  of  the  Sialc  lluit, 
while  the  injuries  received  hy  the  deceased  at  the  hands  <if  phiin- 
tiU's  in  error  were  not  per  so  mortal  injuries,  yet  they  w(it>  s\i('li 
injuries  as  accelerated  and  hrought  on  death,  and  thai  (Icaili  was 
caused  by  blows  and  injuries  whicli  would  not  have  caii^cil  I  lie 
death  of  a  healthy  person  but  which  in  fact  did  caii-(>  llic  ih  ith 
of  the  deceased.  The  fact  that  the  ])erson  killed  wa-  in  a  i'li'hlo 
condition  would  be  no  defense'.  A  wound  to  sndi  a  inrson 
would  be  mortal  to  him,  when  it  would  not  be  a  mortal  w.mnd 

[XT  fiC." 

It  was  a  question  for  the  jury  to  cieternnne  whether  the 
bruises  upon  the  head  of  the  deceased  were  caused  l)y  {hv  Mow 
from  the  fist,  or  by  the  fall  upon  the  pavement,  and  whether 
the  fall  upon  the  pavement  was  In^cause  nf  an  injuiy  or  shcick 
resulting  from  the  blow,  or  from  drunkenness,  or  fi'diii  the  ef- 
fects of  his  many  ailments.  The  evidence  of  the  i>hysii'ian  for 
the  coroner  was  that  the  stomach  of  the  deceased  indicated  tliat 
he  was  a  man  who  draidc  alcoholic  liquors;  that  his  st< mach  was 
inflauKMl,  and  was  marked  by  old,  dark,  and  possihly  alcoholic 
streaks.  The  testimony  of  the  plaintiifs  in  error  was  to  the 
eU'eel  that  the  deceased,  when  they  lirst  saw  him  with  (as  they 
claim)  Taylor,  was  in  a  drunken  conditi<iu  and  static  rini:.  It 
was  a  question  to  be  determined  by  the  jury,  as  a  (iiiestion  of 
fact,  not  oidy  what  ])roduced  the  bruises,  and  whether  the 
shock  which  produced  his  death  was  caused  by  the  hlow  which 
he  received  or  by  the  fall  upon  the  pavement,  but  also  whether 
the  fall  ui)on  the  pavement  was  caused  by  or  as  the  ert'eet  of 
the  blow,  or  because  of  his  intoxication,  if  he  was  intoxicated, 
or  from  his  diseased  and  enfeebled  condition  of  l)ody. 

In  the  course  of  the  attcMupts  of  counsel  fen-  the  plaintiffs 
in  error  to  frame  a  hypothetical  question  designed  to  elicit 
from  the  physician  an  opinion  as  to  the  cause  of  death,  the 
Court  interrupted  counsel  with  this  renmrk,  in  the  presence 
of  a  jury:    "Why  don't  you  say  the  bruise  was  caused  by  a 


r      !? 


''•I 

iii' 

k 


!'  •! 


1: 


6GS 


AMERICAN  CRIMINAL  REPORTS. 


blow  from  a  fist?"  Counsel  objected  and  excepted  to  tli(>  vo- 
niavk  of  tbo  Court  on  the  jiTOund  that  it  was  a  question  to  lie 
(U'terniiiied  from  the  evitUnice  whether  the  bruise  was  eaii-cd 
by  tlie  fall  on  the  pavement,  or  by  a  blow  from  a  fist.  Coiuixl 
again  endeavored  to  frame  tlie  question,  and,  wlien  he  ha<l  com- 
pletfd  it  as  he  (k-sircd  to  ask  it,  tlie  (\)urt  made  tlie  followiiiir 
remark:  ''JIadn't  you  better  add  to  that  that  the  bruise  wns 
produced  by  a  blow  of  the  fist,  and  that  ho  was  choked;"'  In 
endeavoring  to  frame  a  like  question  to  ho  propoiuuk'd  to  an- 
other physician,  counsel  again  insisted,  in  a  colbxpiy  wliiih 
arose  between  the  (^)urt  and  counsel,  upon  tlie  view,  siilist;ui- 
itially,  that  it  was  a  question  of  fact  as  to  what  caused  the 
b^'i'ses,  and  said  there  was  no  direct  evidence  u[)0!i  the  poiiir. 
Ti'.i^  (' i>irt  I'esjxinded :  *'()h,  yes,  there  is;  by  a  blow  of  liu! 
fist.''  These  remarks  of  the  Court  were  expressive  <tf  his  de- 
ductions from  the  evidence' upon  a  question  of  fact  which  it 
was  tli<'  ])rovince  of  the  jury  to  determine,  and  ui)on  which  it 
was  the  right  of  the  iilaintiffs  in  error  t(»  have  the  decisiun  of 
the  jury  uninihienced  by  any  opinion  entertained  by  the  ( 'ourt. 
Another  incident  of  tlie  trial  may  have  oj)erated  to  tlie  serimis 
detriment  of  the  ])laiiitifi"s  in  error.  It  will  be  rememhereil 
the  iiiilictment  chai'g< d  the  iihuiitiirs  in  error  and  Harry  A. 
Taylor  and  Patrick  Kane  with  the  crime  of  murder  in  the 
killing  of  said  Ilarfman.  Tlie  authorities  were  not  able  to 
apprehend  Tayl(jr  and  Kane,  and  plaintifis  in  error  were  ])lac((l 
ujion  trial  together.  All  of  the  testimony  concurred  in  the  view 
that  only  two  ])ersons  were  coiicerneil  in  the  assault  upon  llart- 
maii.  'i'he  plaintifi's  in  error  testilie(l  that  the  assault  u])ou 
Ilarlinaii  was  committed  by  Taylor  and  Kane.  The  tesliniouy 
of  the  witness  Ilackett  was  that  the  plaintifi's  in  error  did  not 
comiiiit  the  assault,  and  that  he  saw  two  other  men  engaiicd 
in  the  afiVay  with  llartman.  The  plaintifi's  in  error  presentid 
as  a  (li  t'ense  to  the  charge  against  them  that  it  was  Taylor  and 
Kane,  and  n<it  the  plaintitfs  in  error,  oi-  either  of  them,  who 
assaulted  llartman;  and  their  testimony,  if  credited  liy  the 
jury,  (>slablislu'd  this  defense,  and  the  testimony  of  the  wit- 
ness Ilackett,  if  worthy  of  credit,  C(n'roborated  that  of  the 
plaintilTs  in  errfir,  and  ae(piitted  them  of  all  co!inecti<in  with 
the  crime.  In  the  argument  of  counsel  for  the  plaintiirs  in 
error  to  the  jury,  this  defense,  and  the  evidence  bearing  uiion  it, 
was  discussed  and  pressed  upon  the  attention  of  the  jury.     In 


CUNNINGHAM  v.  PEOPLE. 


6G9 


the  course  of  tlio  closiiio;  argument  for  tlio  People  heforo  tlio 
jury,  counsel  for  the  State,  addressing  the  Court  and  jury, 
said:  ".May  it  please  your  honor  and  gentlemen  of  the  iur'v 
there  is  nothing  to  the  contention  of  counscd  for  tlie  defendants 
that  Taylor  and  Kane,  or  any  one  else  but  the  defendants, 
assaulted  I'eter  llartnmn,  I  now  ask  the  Court  that  a  iiulU; 
prosofjui  l)o  entered  on  this  indictment  as  to  Taylor  and  Kane, 
and  tlie  case  dismissed  as  to  them."  Counsel  for  the  phuntitfs 
in  error  objected  to  this  line  of  argument,  and  to  the  course 
proposed  to  be  pursued  as  to  the  charges  against  Taylor  and 
Kane;  but  the  Court  overruled  the  objection,  and  allowed  the 
motion  that  a  nolle  prosctpil  be  entered  as  to  Taylor  and  Kane 
to  l.ie  interjected  into  the  argument  of  counsel  for  the  People, 
and,  in  the  presence  of  the  jury,  ordered  a  nolle  prosequi  to  be 
entered  as  to  said  Taylor  and  Kane  on  all  the  counts  of  the 
indictment.  To  Ibis  ruling  and  action  of  the  Court  counsel 
for  plaintilfs  in  error  saved  their  exceptions. 

^Ve  need  not  enter  into  a  discussion  as  to  the  power  of  the 
State's  Attorney  to  enter  a  nolle  prosequi,  with  or  without  the 
consent  of  the  Court,  or  as  to  the  discretion  resting  in  the  Court 
to  control  the  disposition  of  criminal  causes  jiending  before  him. 
It  was  un<iuestionably  within  the  power  of  tlie  Court  to  decline 
to  permit  the  attorney  for  the  State,  in  the  midst  of  his  avgu- 
inent  to  the  jury,  to  stop  the  argument,  and  addi-ess  a  motion 
to  the  Court  with  reference  to  the  disposition  of  criminal 
charge  s  against  other  persons  than  those  upon  trial  before  the 
jury.  The  real  purj)ose  to  be  attaine<l  l)y  the  motion  was  mani- 
festly not  the  disposition  of  the  indictment  against  Taylor  and 
Kane.  This  was  only  the  ostensible  purpose,  the  ulterior  design 
being  to  add  weight  to  the  argument  that  the  defense  that  Tay- 
lor and  Kane  were  the  guilty  ])arties  had  no  support  in  the 
jn'oofs.  Under  all  the  circumstances,  the  action  of  the  Court 
in  granting  the  motion  of  the  representative  of  the  State  that  a 
nolle  prosequi  of  the  charges  against  Taylor  and  Kane  be  en- 
tered would  naturally  be  received  by  the  jury  as  an  approval 
bv  the  Court  of  the  assertion  with  which  counsel  for  the  State 
accomi»anied  the  request  for  a  nolle  prosequi, — that  there  was 
nothing  in  the  contention  of  the  plaintiffs  in  error  that  Taylor 
and  Kane  were  the  persons  who  assaulted  the  deceased,  Ilart- 
man.   It  was  entirely  proper  for  counsel  for  the  State  to  argue, 


i  I  u^ 


i  i 


r 


W  i  I'  1 


!     • 


1 
i 


H 


»'  f 


1! 


■u 


G70 


AMERICAN  CRIMINAL  REPORTS. 


nil  tlio  evidence  being  considered,  that  the  defense  (Imt  iho 
assault  made  upon  IJartnian  was  made  by  Taylor  and  Kane, 
and  not  by  the  plaintiffs  in  eri'or,  had  failed;  but  it  wa-  en- 
tirely indefensible  to  permit  such  counsel  to  brinjf?  to  tiic  ail 
of  the  argument  the  power  and  weight  of  an  approval  1»\  ilic 
Court  of  tlie  ])osition  assumed.  The  purpose  in  ])ausiiiu  in 
the  elosing  argnment,  and  asking  that  the  Court  should  olHcially 
dispose  of  the  charges  .against  Taylor  and  Kane,  was,  as  we 
have  said,  an  ulterior  one,  but  that  the  ostensible  purpose  \\;h 
not  the  real  one  was  manifest  and  palj)al)le;  and  tlie  eiFect  upnn 
the  jury  of  the  entry  of  a  nolle  proscfiui  under  such  extraoiili- 
nary  circumstances  was  so  plainly  prejudicial  to  a  fair  and 
ini))artial  trial  of  the  guilt  or  innocence  <>i  the  plaintill's  in 
error  that  the  action  thus  taken  by  the  counsel  for  the  Slate 
and  by  the  (\)urt  nmst  be  declared  error  of  such  serious  anil 
prejudicial  character  as  to  demand  the  reversal  of  the  judgment 
of  conviction. 

Notwithstanding  tlie  solemn  declaration  of  counsel  for  Ihe 
People  that  the  evidence  demonstrated  that  Taylor  and  Kane 
liad  no  connection  with  the  death  of  Ilartman,  and  noiwith- 
standing  such  counsel  felt  called  upon  by  the  state  of  the  pn..!', 
as  ho  claimed  it  to  be,  to  dismiss  the  prosecution  as  to  Tavlir 
and  Kane,  and  notwithstanding  the  Court  permitted  couii-(  I 
to  stoj)  in  tlie  course  of  his  argument  to  the  jury  to  ask  that  a 
r.olle  prosequi  Ih'  entered  and  granted  the  motion,  still  coun-el 
sought,  and  the  Court  granted,  an  instruction  to  the  jury  wliieii 
could  but  be  understood  by  the  jury  to  authorize  them  to  relurn 
a  verdict  of  guilty  against  the  plaintiffs  in  error  on  the  thcoiv 
the  plaintiffs  in  error  aided,  abetted,  and  assisted  Taylor  and 
Kane  to  kill  and  murder  Ilartman.  The  instruction  is  as  fel- 
lows : 

''The  court  instructs  the  jury  that  in  order  to  find  the  de- 
fendants in  this  case  guilty  of  the  killing  of  the  deceaseil, 
I'eter  Ilartman,  it  is  sufficient  if  they  combined  with  tlm-e 
eommilting  the  deed  to  do  an  unlawful  act,  such  as  to  beat  nr 
rob  the  deceased,  and  that  he  was  killed  in  the  attemjjt  tn 
execute  the  common  purpose.  If  several  persons  conspire  to 
do  an  unlawful  act,  and  death  happens  in  the  prosecution  of 
the  common  object,  all  are  alike  guilty  of  the  homicide.  J  lie 
act  of  on(!  of  them,  done  in  furtherance  of  the  original  design, 
is,  in  contemplation  of  law,  the  act  of  all." 


CUNNINGHAM  v.  PEOPLE. 


671 


The  instmctioiiH  cnrried  a  Piijrirf'stidn  to  tlio  jury,  as  c'oiiiiii:.^ 
from  the  (.'ourt,  tliat,  oven  should  tlu^  jury  hcliove  from  tho 
te.stiiiiouy  tliat  Taylor  and  Kane  were  the  persons  whom  tin- 
witnesses  for  the  People  saw  engaged  in  assaulting  Ihirtnuin, 
still  a  verdict  convicting  the  plaintiffs  in  error  woidd  he  author- 
ized by  th(!  evidence,  on  the  ground  that  tliey  Avore  accessories 
to  the  connniasion  of  the  crime.     The  record  is  barren  of  anv 
testimony  justifying   the   apjdicatiou   to  the  case,   as   against 
these  two  plaintiffs  in  error,  of  the  doctrine  of  the  crimiiuil 
law  wifli  reference  to  principals  and  accessories.     The  testi- 
mony produced  in  l)ehalf  of  tbe  State  and  that  in  behalf  of  the 
plaintiffs   in   error   was  to   the  effect   that   Ilartman    was   as- 
saulted by  but  two  nun.     One  witness  in  behalf  of  the  IVnjple 
identified  the  j)hiintiffs  in  error  as  being  the  assailants  of  the 
deceased.     The  testimony  of  the  plaintiffs  in  error  and  of  the 
witness  Uaekett  was  that  the  assailants  of  Ilartman  were  not 
tlie  plaintiffs  in  error,  but  two  other  persons,  aiul  the  ])liiiiitiffs 
in  error  identified  the  assailants  as  being  Taylor  and   ivane. 
There  wa.s  not  a  scinlUla  of  proof  that  Taylor  and   Kane  and 
the  plaintiffs  in  error  were  acting  in  concert,  or  that  the  plain- 
tiffs in  error  aided,  abetted,  counseled,  or  advised,  or  were  iii 
any  way  accessories  to,  the  acts  of  Taylor  and  Kane.     It  was 
error  to  grant  these  instructions. 

It  is  urged  that  other  erroneous  rulings  were  made  by  the 
(^ourt  in  granting  and  refusing  instructions.  Instruction  Xo. 
1  asked  by  tlu^  plaintiffs  in  error  should,  we  think,  have  been 
given.  It  was  addressed  to  the  presumption  that  the  plaintiffs 
in  error  were  innocent  of  the  offense  charge<l  against  them,  and 
advised  the  jury  clearly  and  fully  as  to  the  effect  to  l»e  given 
a  reasonable  doubt  of  guilt.  The  Attorney  General  concedes 
the  instruction  to  be  correct.  It  was  so,  unquestionably.  Un- 
der (he  state  of  the  evidence,  the  instruction  touched  upon 
(pujstions  of  the  gravest  gravity  and  moment.  The  suggestion 
of  the  Attorney  General  that  instruction  Xo.  23,  given  at  re- 
(piest  of  the  People,  sufficiently  instructed  the  jury  as  to  the 
persuniption  of  innocence  and  rule  as  to  a  reasonable  doubt 
of  guilt,  cannot  be  accepted.  The  purpose  of  that  instruction, 
though  it  recognized  the  presumption  and  the  necessity  of 
establishing  guilt  beyond  a  reasonable  doubt,  Avas  to  minimize 
the  effect  of  both  principles.  Defendants'  instruction  Xo.  16 
boro  upon  the  questions,  but  it  and  instruction  Xo.  1  might 


I' 


W 


I 


1  i 

1 
t 
1 


G72 


AMERICAN  CRIMINAL  REPORTS. 


well  l)n|li  liavo  boon  given,  and  tlio  latter  was  by  no  menus  tlie 
equivtilciit  tif  tlie  fonnor.  Otlicv  coniitlitints  as  to  the  iiction 
of  the  (Viiirt  in  rnlin*;'  on  instrnetiona  aro  in  the  main  urinind- 
Icss,  and  may  l)c  the  more  s])eedily  disposed  of  by  a  ^viicral 
stateiiicnt  of  the  legal  prineiples  involved  therein. 

Th(^  rule  uf  law  is  well  established  that  if  a  ])er^()n  who  is 
enfeebled  by  diseai=ie  is  nnlawfnlly  assanlted,  iind  an  injury 
inflieted  iipiin  him  which  wonld  not  have  been  mortal  to  n  nijui 
in  ordinary  good  beahh,  but  wliieli  was  mortal  to  him  in  his 
then  physical  condition,  the  assiiihint  is  to  be  deemed,  in  liiw 
gniby  vi  unjustiliable  homicide, — either  murder  or  nian^landi- 
tcr,  as  the  ease  may  be;  and  that  though  the  assaihint  diil  unt 
know  the  enfeebled  condition  of  the  i)erson  assaulted.  In 
such  state  of  ease  the  legal  j)resnmption  is  not  oidy  that  tin? 
lirol)al)!e  and  necessary  consecpiences  of  the  assault  were  in- 
ten<led,  but  the  possible  eonsecpiences  also.  If  rlie  assault  was 
comnutted  in  the  perjietration  of  a  felony,  the  killing  wmiM 
be  nnirder.  It  is  inunaterial,  in  respect  of  criminal  re-pnnsi- 
bility,  that  the  injuries  but  hastened  the  death  of  the  pcisnu 
assaulted,  for,  as  expressed  by  ancient  writers  and  judges, 
"the  ofl'ender  nniy  not  apportion  bis  own  \vi  mg."  9  Am.  fr 
Eng.  Ene.  Law  (1st  Ed.)  pp.  rj.'JI,  53,"),  and  cases  cited  iu 
notes;  2  llish.  Cr.  Law,  §i;037,  C38,  09(5;  Kerr,  Horn,  ii^i'li.  :\-2, 
33;  3  Greenl.  Ev.  §!l  139,  141;  1  .McLean,  Cv.  Law,  Sl'Hl';  1 
Hale,  P.  C.  428;  Eosc.  Cr.  Ev.  (4th  Ed.)  (;t»r.;  1  Kn.-s. 
Crimes,  r>05;  Sludall  v.  Slate,  7  Ga.  2;  State  v.  Murca,  2  Ala. 
275;  Williams  v.  State,  2  Tex.  Ai)p.  2S2;  Box  v.  Webb,  1 
:Moody  ^•  K.  405;  Rex  v.  Martin,  5  Car.  &  P.  130. 

As  to  the  question  of  the  cause  of  dcatb  in  the  case  at  bar: 
If  the  deceased  received  a  blow  with  the  'Mist,"  and  the  injury 
directly  produced  by  tlie  blow  exunguished  the  spark  of  lit'o, 
no  matter  how  feeble  the  sj)ark,  the  blow  should  be  reganlcd 
as  the  cause  of  death.  If  the  blow  so  phvsieallv  alTected  the 
deceased  as  that  from  the  injurious  etfects  tbenof  be  was  ren- 
dered unable  to  stand  and  walk,  and,  as  a  con.etpience,  fell 
upon  the  cobblestones,  and  death  residted  from  the  fall,  the 
blow  is  to  be  regarded  as  the  cause  of  death,  even  thciugli  it 
might  not,  within  itself,  have  proven  mortal.  2  Jiisb.  ('r.  Law 
(7tli  Ed.)  §037.  If  death  rasults  indirectly  from  a  hl.w; 
thi'ongh  a  chain  of  natural  causes,  unchanged  by  human  action, 
the  blow  is  regarded  as  the  cause  of  death.     Kelley  v.  State, 


CUNNIXGHAM  v.  PEOPLE. 


(i73 


53  Ind.  311.  If  the  injuries  Avliioh  earned  llip  donth  of  Tliirf- 
lUMii  pnK'ccdf-d  fnmi   lli(>  fidi  nii-m  tlic  piivciiicnt,  niid  hi.  in- 

aliility  to  stniid  cm-t  amsc  wIk.IIv  I'roiii  on •  hkhv  of  his  hkhiv 

jilivsiciil  iutinnitips  and  nlHiclioiis  or  fn„ii  iiitnxiciilinn,  iiii'd 
such  iiiid)ilitj  to  iiiaiiiiaiii  an  upriinht  [xisition  was  ii,,|  ,nii- 
trilnitcil  tn,  iiK'diatcly  or  iimncdiatclv,  h_v  the  blow,  his  drjiih 
should  be  attrihutcil  Id  natural  causes.  Thc.-c  ohscrvations,  il- 
ls hc'lii'vcd,  will  t-nahle  the  trial  court,  on  a  rchcarin<i-  of  tho 
case,  to  correctly  dcchire  tlic  legal  principles  involved  iu  this 
brnneh  of  the  cane. 

The  plaintiii'  in  error  Cunningham  was  nl)ovc  20  years  of 
age,  but  had  not  reached  the  age  of  21,  at  the  time  I'larlniaii 
came  to  bis  (b'atli.  It  is  insisied  that  a  rlcfendaiit  cannot  be 
wntcnced  to  imprisonnu  lit  in  the  [)enitcntiary  for  an  fjifeiisc 
conunitted  before  such  defendant  liad  arrived  at  the  aire  of 
1*1  years.  This  is  a  misappreheiHitm  as  to  the  meaning  of 
the  statute.  Section  U  of  cha[)ier  lis  (Hurt's  liev.  St.  iMHi), 
entitled  "Keformatory,"  etc.,  provides  that  the  inmates  of  the 
reformatory  shall  be  divided  into  two  divisions-  or  departments; 
the  first  to  include  tho>(>  Ik  I  ween  the  ages  ot'  10  and  l(i  vears, 
and  tiie  sec«)nd,  those  between  the  ages  of  1(5  and  -Ji  vears. 
Section  10  of  the  act  retjiiires  that  the  ver^bct  upon  which  a 
defendant  is  sentenced  to  be  coiiiiiu'd  iu  tlic  refornuitorv  shiill 
find  whether  or  not  the  def(  iidant  is  iM'tween  the  ages  of  10 
and  21,  and  sliall  tind,  as  nearly  as  may  be,  ti'c  age  of  the 
(lefemhint.  Section  12  iu  conformity  witli  ?efiions  !)  and  10, 
]irovides:  ''Any  Court  iu  this  State  exercising  criminal  juris- 
diction nmy  sentence  to  the  said  reformatory  any  male  crim- 
inal between  the  ages  of  sixteen  and  twenty-one,  and  not  shown 
to  have  been  previously  sentenced  to  a  penitentiary  in  this  or 
any  other  State  or  country  upon  the  conviction,  in  such  Court 
of  such  male  person  of  a  crime  punishable  under  existing  laws 
iu  a  penitentiary;"  an<l  the  same  sectiim  rtMUiires  the  board 
of  managers  of  the  reformatory  to  receive  info  the  institu- 
tion under  their  charge  all  male  criminals  of  the  class  afore- 
said, namely,  between  the  ages  of  10  and  21  years.  Tho 
refcu'inatory  was  established  in  conformity  with  the  convic- 
tion which  had  fouml  lodgment  in  the  public  mind  that  the 
time  of  the  detention  of  youthful  ofl'enders  against  the  criminal 
laws  ought  to  be  availed  of  to  instruct  the  conscience  and  cul- 
tivate the  intellect  of  the  offender,    and    train    him    to    the 

Vol.  XIII— 43 


Mil! 


m 


1    ! 

t 

G74 


AMERICAN  CRIMINAL  REPORTS. 


kimwh  (lyo   of  sniiin   useful   Inidc  or   o('on|  .      Tt   \vii-<  tlio 

tlic'orv  tliat  tlio  l)('ii('lifs  of  siicli  an  iii.stitiiiion  cduld  nnt  Ik. 
t'.\toii(l(  (1  to  tliosc  wlio  liDil  |)iiss('(l  Iicv((iul  the  period  n|'  life 
iHUiillv  devoted  to  tlu'  imrposes  of  education  and  IraiiiiuM'  t',,,. 
an  cKH'Upatioii  or  trade;  nor  thought  advisable  iliat  older  criiii- 
IiuiIh  should  lie  asso(dated  willi  those  of  more  voulliriil  veins. 
The  rcd'ornuitory  was  therefore  organized  for  liic  rer(  pijiiu 
of  jKMSons  not  above  the  afj^e  <d'  :i  1  voars,  the  f;'overniiit;  pnvpd^c 
hcin^'  to  receive  only  tlmse  persons  who  are  (»f  such  iniiii;uurii\ 
(d'  years  as  to  Ik'  suseeptihli-  to  the  advantaiics  of  trniuiiiii'  mihI 
discipline.  It  is  the  ajic  of  the  olfender  at  the  liuie  when  if 
Ik'couks  necessary  to  deti-rniine  the  \)hwo  of  his  d(  teiilimi 
which  must  contnd  his  sentence. 

'J'lie  judiiuiriit  of  ci>iivicti»»n   is   reversed 
plaint  ill's  in  error,  and  the  cause  is  reman 
Court  id'  Cook  Counly  for  such  further  ].• 
and  justice  shall  appertain. 

]tever>ed  and  renunided. 


to  each  .i|'  ihc 
'o  \hv  ( 'riiniiial 
idnjis  as  In  hr.v 


XoTK  (Hy.  J.  F.  G.) — The  method  taken  by  the  Assistant  Slates  At- 
torney In  catering  the  uoUe  proaequi  was  certainly  very  object loiiiiI)lf, 
His  lar.Kuauio  addressed  to  both  tlio  court  and  the  jury  imlhiiioii 
a  ])Osit!ve  statement  of  fact,  instead  of  a  logical  deduction  fioni  the 
evidence.  This  beins  ai)i)roved  by  the  judf^e  would  naturally  tend  to 
influence  the  jury  against  the  theory  of  the  counsel  for  the  accused. 
While  we  approve  the  action  of  the  Supreme  Court  in  holdinu;  this 
irregularity  to  be  reversible  error,  it  is  but  justice  to  ;\Ir.  Olson  to 
say  that  we  are  informed  that  counsel  for  the  accused  had  vi.uoronsly 
pressed  tiieir  contention  to  the  jury.  Tlie  fact  that  the  iiidii  tment 
charged  Taylor  and  Kane  with  the  offense,  lent  some  weight  to  ilu'ir 
conte;iticu,  which  Jlr.  Olson  sought  to  destroy  by  entering  a  iiullc 
prosequi  as  those  parties. 

Mr.  Olson  has  for  nearly  ten  years  been  regarded  as  an  alilo  aiul 
courteous  ijrdsecutor,  and  has  been  held  in  high  esteem  by  the  law- 
yers practicing  in  the  Criminal  Court  of  Cook  county.  At  i)rcsciit  he 
Is  a  candidate  for  the  position  of  Chief  Justice  of  the  new  .Municliial 
Court  of  Chicago,  a  position  for  which  he  is  eminently  qualified. 

As  to  whether  carelessness  in  treating  a  wound  or  feebleness  of  the 
deceased  can  avail  as  a  defense,  see  State  v.  Strong,  ante  I'TS  and 
Hews  Case,  ante  2S3. 


STAPLES  V.  STATES. 


675 


Stavlkh  v.  State. 

114  Oa.  25C--40  S.   10.  Uop.  2C4. 

Decided   Dcceiiil)t>r   10,   I'JOI. 

V.vKiA.Nfi::     Strict  proof  required  as  to  iniiuHvssanj  averments  of  owner- 
xhip. 

Fish.  f.  J.,  1.  Thonr^h  iin  Indictment  for  rol)lK>r.v  need  not  cliarKc  that 
the  property  alleged  to  have  been  forcibly  taUen  from  the  per- 
Bon  of  the  victim,  In  fact,  belonged  to  a  third  person,  if  it  does 
HO  charge,  it  Is  CHsenlial  that  the  State  prove  the  case  as  laid. 
•J.  lrrcsi)ective  of  oilier  cpietstiona  jiresented,  a  new  trial  should  have 
been  granted  bocause  of  a  fatal  variance  between  tiie  alicgata 
and  the  iivohata. 
(Syllabus  by  tlie  Court.) 

y.rrdr  to  Suixrior  Court,  ITiirris  ("ounty;  lion.  W,  B.  Butt, 
Judiic 

Will  Stiiplc"?,  convicted  of  rohhoi'V,  hriu^us  error,     lievcrsed. 

J.  R.  Terrell  iin<l  J.  B,  Bunislde,  for  tlie  plaintiff  in  error. 

S.  P.  Gilbert,  Solicitor  General,  for  the  State. 

-ludfi'inent  reversed.     All  the  Justices  concurring. 

Gknehal  Notes  on  the  Law  RrrATixo  to  Vaiiiaxce  as  Aimt-ikd  to 
Chi.minai-  Cases  (by  .T.  F.  G.). — The  princiiial  cases  rei)orted  in  the 
present  volume,  on  the  law  i)crtaining  to  variance,  together  with  older 
cases  incorporated  into  the  notes  to  tliem,  shed  so  niucli  light  on  the 
subject,  that  a  few  suggestions  will  at  present  suflice. 

It  is  a  fundamental  doctrine,  that  an  indictment.  Information  or 
conii)laint  charging  a  criminal  offense,  should  be  clear,  certain  and 
specific,  so  that: 

t.  The  accused  may  know  the  exact  charge,  and  may  Intelligently 
prepare  his  defense. 

2.  He  may  plead  his  acquittal  or  conviction  in  bar  to  another  prose- 
cution for  the  same  offense. 

The  first  proposition  requires  all  of  the  material  matters  to  be 
pleaded  with  a  degree  of  certainty,  that  the  accused  being  fully  ad- 
vised may  intelligently  prepare  his  defense,  and  having  so  prepared  it, 
is  not  taken  by  surprise  by  the  presentation  of  a  case  at  variance 
with  the  case  stated  in  the  accusation.     This  rule  extends  to  matters 


!l  I  i 


(.'     I 


Ml* 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


I   I 


y 


Jii 


676 


AMERICAN  CRIMINAL  REPORTS. 


ill  themselves  not  material,  but  by  being  specially  pleaded,  booonie 
essential  matters  of  description.  An  indictment  chargins  tlip  Imrslav 
Izing  of  the  dwelling  house  of  a  particular  person,  sufficioiiUy  dp. 
scribes  the  house;  but  if  the  indictment  alleges  that  the  house  \v;in  in 
a  particular  locality,  that  which  was  originally  ininiaterial,  liy  being 
sjieclally  pleaded,  becomes  material,  as  a  i)nrt  of  the  destriplion  of  llie 
house.  It  thereby  becomes  an  essential  and  indispensable  part  of  the 
accusation,  to  which  the  evidence  must  conform. 

With  equal  strictness,  the  rule  applies  to  the  second  iiroposition.  In 
determining  a  i)lea  of  former  adjudication,  the  record  on  whicli  such 
plea  is  based  is  the  best  evidence,  oral  evidence  only  being  iidiiiissilile 
as  proof  of  identity,  and  to  explain  that  which  does  not  aiijioiir  in  the 
record.  Thus,  where  a  judgment  on  one  indictment  is  pleaded  in  bur 
of  another,  if  the  description  of  the  alleged  stolen  property  is  identlciil, 
oral  evidence  is  admissi1)Io  to  determine  whether  or  not,  the  two  in. 
dictments  api)ly  to  the  same  sul)ject  matter;  but  when  the  dost ripf inn 
■differs,  the  presumption  is  that  the  indictments  are  based  on  disrinct 
matters.  (On  this,  see  latter  part  of  this  note.)  It  may  be  sufTiticnt 
to  simply  describe  the  alleged  stolen  article  as  a  "coat";  but.  wlion  the 
descrii)tions  in  the  indictment  vary  as  to  the  color,  style,  size  or  Ciua'.- 
ity  of  the  garment,  the  two  indictments  are  presumed  to  rotor  to  dif- 
ferent articles.  Suppose  a  clerk  in  a  clothing  store,  on  two  succos- 
sive  evenings,  as  he  leaves  the  store,  steals  a  co^.t.  Hero  are  two  dis- 
tinct larcenies,  on  which  two  indictments  could  be  presented  in  exactly 
the  same  language;  for  it  is  generally  held  that  the  exact  dato  is  nnt 
mi:terial.  A  good  pleader,  however,  would  and  should  give  such  pai-- 
tlcular  description  of  each,  as  would  distinguish  each  lanony  from 
the  otlier.  This  would  be  but  fair  to  both  the  court  and  the  a.ccused, 
would  give  identity  to  each  indictment,  would  prevent  confusion  and 
would  limit  the  evidence  to  the  particular  matter  as  charged  in  each 
indictment. 

Xnmes  of  persons. — Where  the  name  of  a  person  becomes  a  inatcrinl 
part  of  an  indictment,  r;trict  jiroof  is  generally  required,  even  as  to 
an  unnecessary  addition,  such  as  the  word — "widow."  Ulex  v.  Dcckil, 
given  in  full  as  part  of  the  notes  to  Irniu  v.  State.)  Thoro  is  some 
conflict  of  authority,  as  to  whether  or  not  the  same  strict  vu\o  ajiidips 
to  middle  names.  (liatrUff  v.  t<tate  and  notes.)  While,  as  a  ;;oiioral 
rul' ,  it  is  unnecessary  to  i)lead  a  middle  name,  it  would  sooni.  that 
when  so  pleaded,  it  becomes  a  descriptive  matter  of  identity,  loiiuirini; 
proof,  especially  in  large  cities,  where  the  same  name  might  indicate 
any  one  of  a  number  of  persons.  In  many  instances  the  middh^  name, 
or  an  initial  rei)rescnting  it,  becomes  so  insejinrably  a  luirt  of  tiio  naaie, 
tliat  to  discard  it,  would  cause  the  name  itself  to  lose  its  identity.  Take. 
for  example  the  name  of  Chicago's  noted  lawyer  and  orator — T.uthcr 
Laflin  Mills,  which  has  l)ecome  fixed  in  the  public  mind  as  a  unit. 
In  this  instance  the  omission  of  that  which  in  fact  is  a  middle  name, 
would  impair  the  identity  of  the  name  as  poi)ularly  known  and  u«ed 
and  render  that  obscure,  which  otherwise  would  be  clear  and  oorlain. 


M 


STAPLES  V.  STATE. 


677 


The  rule  should  be:— When  the  middle  name,  or  its  initial,  becomes 
fixed  as  a  matter  of  identity,  either  through  general  use  or  to  dis- 
tinguish it  from  similar  names  of  persons  in  the  same  locality,  then 
it  should  be  pleaded,  and  the  proof  should  be  limited  to  the  exact 
name  as  pleaded. 

2\a7nes  of  persons — Idem  sonans. — As  to  the  names  of  persons,  other 
than  a  defendant,  an  error  in  the  spelling  docs  not  constitute  a  vari- 
ance if  the  sound  is  the  same  {Biggers  v.  State  au'i  notes) ;  unless  the 
spelling  itself  is  a  material  part  of  the  accusation. 

yumes  of  corporations. — As  the  name  of  a  corporation  is  created  by 
charter,  or  by  a  special  law,  and  in  either  case  made  a  matter  of  rec- 
ord, greater  strictness  should  be  required  in  proving  the  name,  than 
in  proving  the  name  of  a  natural  person.  In  the  name  of  a  corpora- 
tion the  spelling  is  part  of  its  legal  identity. 

llTie/i  and  how  advantage  may  be  taken  of  a  variance  hetiveen  the 
indictment  and  the  evidence. — While  it  may  be  better  practice,  to  ob- 
ject to  variant  testimony  at  the  time  it  is  offered,  a  failure  to  do  so 
ousht  not  to  be  considered  as  a  waiver  of  the  variance.  Silence  on  the 
part  of  the  accused  or  his  counsel  does  not  change  the  character  of 
the  evidence  offered;  nor  does  it  make  that  proof,  which  is  not  proof. 
The  defendant  has  ?,  iight  to  sit  silent  while  irrelevant  and  harmless 
evidence  is  beiPo'  introduced,  and  patiently  wait  for  evidence  relevant 
to  the  charge  as  lafd  in  the  indictment;  and,  if  such  evidence  is  not 
given,  to  cit'im  au   icquittal. 

The  trial  <if  a  criminal  case  is  not  like  that  of  a  civil  case,  where, 
upon  objectioi:  being  m;ide,  the  opposite  party  may  obtain  leave  to 
amend,  so  as  to  make  his  pleading  conform  to  the  evidence  offered. 
When  in  a  criminal  case,  a  plea  of  not  guilty  is  entered  to  an  indict- 
ment and  a  jury  is  sworn  to  try  the  issue  joined,  the  defendant  has 
been  i)laced  in  jeopardy  on  the  issue  joined  on  the  arcnsation  as  lai'l 
in  the  indictment ;  and  is  entitled  to  a  verdict  of  not  guilty  unless 
that  charge  is  sustained  by  evidence  beyond  all  reasonable  doubt. 

A  variance  is  only  fatal,  when  it  applies  to  a  matter  of  substance; 
hence,  a  fatal  variance  should  avail,  even  if  raised  for  the  first  time 
on  motion  for  new  trial,  or  by  writ  of  error;  for  no  verdict  of  guilty 
or  judgment  of  conviction  should  be  permitted  to  stand,  unless  sus- 
tained by  evidence,  proving  the  crime  as  charged  in  the  indictment. 

The  doctrine  of:  Once  in  Jeopard]/,  as  applied  to  the  doctrine  of 
variance  in  criminal  cases. — Thp'-"  are  two  Constitutional  safeguards 
embodied  in  the  doctrine  of  variance,  as  applied  to  criminal  cases. 
They  are: 

1.  That  no  person  shall  be  placed  on  trial,  except  upon  a  charge  pre- 
ferred against  him. 

2.  That  no  person  shall  be  twice  put  In  jeopardy  for  the  same 
cffense. 

If  a  person  is  legally  placed  upon  trial,  a  Judgment  of  acquittal  or 
conviction  is  a  bar  to  all  further  prosecution  for  the  same  offense;  yet, 
it  was  held  in  Giicdel  v.  People,  43  111.  22G,  that  an  acquittal  on  an  in- 


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1 1 


678 


AMERICAN  CRIMINAL  REPORTS. 


(lictment  charging  murder  by  shooting,  was  no  bar  to  a  subsequent 
indictment,  for  liilling  the  same  man  by  beating  him  with  a  gun.  The 
court  held  in  that  case,  that  the  two  indictments,  allhougli  for  the 
killing  of  the  same  person,  did  not  in  contemplation  of  law  chnrge  the 
same  offense,  and  that,  accordingly,  Guedel  was  not  acquitted  of  the 
crime  charged  in  the  second  indictment. 

In  the  light  of  this  authority,  that  an  acquittal  is  no  bar  to  a  sec- 
ond prosecution  for  the  same  offense  upon  an  indictment  charging  the 
crime  to  have  been  committed  in  a  different  manner,  no  verdict  of 
guilty,  or  conviction,  based  upon  evidence  variant  to  the  iuilictnieut 
should  be  permitted  to  stand;  and,  it  should  be  the  duty  of  any  Court 
having  jurisdiction  of  the  case,  to  hold  such  verdict  or  conviction  bad, 
when  that  fact  becomes  apparent  to  the  court,  even  though  not  raised 
by  the  defendant  or  his  counsel. 

The  Guedel  Vase  is  one  of  great  value  not  only  on  this  point,  but 
upon  the  general  doctrine  of  variance.  We  incorporate  it  iu  these 
notes  as  follows: 

GUEDEL  v.  PEOPLE. 

43  111.  22G— January  Term,  1SC7. 

Mr.  Justice  Lawhexce  delivered  the  opinion  of  the  Court: 

At  the  May  Term,  1800,  of  the  Madison  County  Circuit  Court,  John 
Guedel,  the  plaintiff  in  error,  was  indicted  for  the  murder  of  Adam 
Zimmerman.  The  indictment  charged  the  killing  to  have  l>oi>n  done 
by  striking  the  deceased  uiion  the  head  with  a  gun.  Tlie  dtlViidant 
pleaded  autre  fois  acquit.  The  plea  set  fcrth  that  at  the  Octohor  Term 
1SG4,  of  the  same  court,  the  defendant  was  indicted  for  tlie  niiinl(>r  of 
said  Zimmerman,  duly  tried  by  a  jiiry  and  acquitted.  The  picv,  gives 
the  former  indictment,  which  avers  the  killing  to  have  been  done  by 
shooting  with  a  gun,  charged  with  gun  powder  and  leaden  shot.  To 
this  plea  there  was  a  rejjlication,  adniittiag  the  acquittal  upon  the 
former  indictm  -nt,  and  that  the  said  Adam  Zimmerman  in  the  inescnt 
indictment  mentioned,  is  the  same  Adam  Zimmerman  mentioned  in 
the  former,  but  averring  that  "the  said  felony  and  murder  mentioned 
in  the  former  indictment  are  not  the  same  felony  and  murder  men- 
tioned in  the  present  indictment,  and  that  the  said  .\dam  Zimmerman 
was  killed  and  murdered  by  the  said  John  Guedel  in  tlio  manner  and 
by  the  means  sut  forth  in  the  present  indictment,  and  not  in  the  man- 
ner and  by  the  means  alleged  in  the  said  former  indictnu^nt." 

To  this  replication  the  plaintiff  in  error  demurred.  TIk^  demurrer 
was  overruled,  and  on  the  trial  which  followed,  the  jury  found  the 
defendant  guilty.  N'o  l)ill  cf  e:<ceptions  was  taken,  and  the  only  ques- 
tion made  in  this  court  is,  as  to  the  correctness  of  the  decision  iu  over- 
ruling the  demurrer. 

The  first  question  to  be  determined  is,  whether  the  cvidenep  uiion 
which  the  verdict  must  have  been  found  under  the  present  indietment, 
would  have  been  admissible  under  the  former;  that  is  to  say,  whether, 
under  an  indictment  for  murder  committed  by  shooting  from  a  gun 
by  means  of  powder  and  shot,  the  People  could  be  permitted  to  juove 


-^ 


STAPLES  V.  STATE. 


679 


a  murder  committed  by  striking  the  deceased  witli  a  gun  upon  the 
head. 

The  rule  in  rer,ard  to  questions  of  this  character  Is  briefly  stated  by 
Greenleaf,  with  his  customary  precision,  as  follows:     "An  indictment 
describing  a  thing  by  its  generic  term  is  supported  by  proof  of  a 
species  which  is  clearly  comprehended   within  such  description."     1 
Greenl.  Sec.  G5.     In  his  third  vclume,  section  140,  he  again  says:  "it 
is  sufficient  if  the  proof  agree  with  the  allegation  in  its  substance  and 
generic  character  without  precise  conformity  in  every  particular.  Thus, 
ii  the  allegation  be,  that  the  death  was  caused  by  stabbing  v/lth  a  dag- 
ger, and  the  proof  etc.,  of  killing  by  any  other  sharp  instrument;  or 
if  it  be  alleged  that  the  death  was  caused  by  a  blow  with  a  club,  or 
by  a  particular  kind  of  poison,  or  by  a  particular  manner  of  suffocation, 
and  the  i)rcof  be  of  killing  by  a  blow  given  with  a  stone  or  any  other 
substance,  or  by  a  different  kind  of  poison,  or  another  manner  of  suffo- 
cation, it  is  sufficient:  for,  as  Lord  Coke  observes,  the  evidence  agrees 
with  the  effect  of  the  indictment,  and  so  the  variance  from  the  cir- 
cumstance is  not  material.    But  if  the  evidence  be  of  death  in  a  manner 
csr:cntially  different  from  that  which  is  alleged,  as  if  the  allegation  be 
of  stabl)ing  or  shooting,  and  the  evidence  be  of  death  by  poisoning,  or 
the  allegation  be  of  death  by  blows  inflicted  by  the  prisoner,  and  the 
proof  be  that  the  deceased  was  knocked  down  by  him  and  killed  by 
falling  on  a  stone,  the  indictment  is  not  supported."     We  have  con- 
sulted many  of  the  text  writers  upon  this  subject  and  the  same  rule, 
in  substance  with  similar  illustrations,  is  laid  down  by  them  all.    Tlie 
rule  rests  upon  various  adjudged  cases.     Thus^  where  the  indictir.cnt 
alleged,  that  the  prisoner  struck  the  deceased  with  a  piece  of  brick,  and 
thereby  gave  him  a  mortal  wound,  and  it  appeared  that  the  blow  v/as 
given,  not  with  a  piece  of  brick,  but  with  the  fist,  and  that  the  de- 
ceased fell  from  the  blow  upon  a  piece  of  brick,  and  that  the  fall  caused 
his  death,  the  judges,  on  a  case  reserved,  were  unanimously  of  opinion, 
that  the  means  of  deatli  were  not  truly  stated.    7>'e,r  i\  Kelhj,  1  ?.!f^iKly 
C,  C,  113.     The  authority  of  this  decision  was  afterward  recogiii:;od 
in  Rex  V.  Thompson  id.  1o9.     So  where  an  indictment  charged  a  slioot- 
ing  with  a  plstcl  loaded  with  gunpowder  and  a  leaden  bullet,  and  it 
appeared,  that  there  was  no  bullet  in  the  room  where  the  act  was  done, 
and  no  bullet  in  the  wound,  and  it  was  proved,  that  the  wound  might 
have  been  caused  by  the  wadding,  it  was  held  that  the  Indictment  was 
not  proved.    I'cx  i\  Hughes.  5  C.  &  P.  12G.    This  case  appears  to  us  to 
l)ush  the  doctrine  of  variance  to  its  extreme  verge,  and  probably  we 
might  not  be  disposed  to  follow  it  to  its  full  extent,  but  we  cite  it  as 
illustrating  the  principle  which  we  feel  obliged  to  apply  to  the  chfc 
before  us.    See  also  .}[artin's  Case.  5  C.  &  P.  12S,    In  The  Pcofile  v.  Colt, 
3  Hill  N.  Y.  a  mere  liberal  rule  was  applied,  and  it  was  held,  that  under 
an  indictment  for  murder  by  cutting  with  a  hatchet,  or  by  striking:  ;  nd 
cutting  with  an  instrument  unknown,  evidence  might  be  given  of  shoot- 
ing with  a  pistol.    This  decision,  however,  is  a  departure  from  the  cur- 
rent of  authorities.    So  far  as  our  researches  extend,  it  stands  alone. 


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680 


AMERICAN  CRIMINAL  REPORTS. 


!  I- 


In  the  peculiar  position  of  the  present  case  this  doctrine  of  variance 
bears  unfavorably  upon  the  prisoner;   but  it  has   its  origin   in  that 
tenderness  of  the  law  for  human  life  which  requires  that  a  i)riHoner 
on  trial  for  murder  shall  be  fully  informed  by  the  indictment  of  the 
precise  nature  of  the  charge  he  is  called  to  meet,  and  we  do  not  deem 
ourselves  at  liberty  to  depart  from   the  established   precedcMilH.    We 
must  hold,  that  homicide  by  shooting  and  liomicide  by  beating  tipon 
the  head  with  a  gun  held  in  the  hands,  are  modes  of  cauHiii-';  death 
so  essentially  unlike,  that  proof  of  one  mode  would  be  Imuhnissible 
under  an  indictment  charging  the  oilier.    Cut,  it  is  urged  by  thd  couu. 
sel   for   the   plaintiff  in   error,   that  admitting  this,   nevertlukss  the 
plaintiff  in  error  has  been  once  Indicted  for  the  murder  of  Ad, mi  Zim- 
merman and  acquitted,  and  that  he  can  not  be  placed  in  joopaid.   a  sec- 
ond time  for  the  same  offense.    The  answer  to  this  is,  that,  tei  huitally, 
and  in  the  eye  of  the  law,  the  offenses  described  in  the  two  imlict- 
monts  are  not  the  same.    The  mode  in  which  the  killing  was  aci'oni- 
plished  is  an  essential  part  of  the  indictment,  and  If  two  indi.t incuts 
allege  modes  of  killing  so  substantially  unlike  that  the  evidence  n^'.es- 
sary  to  sustain  the  one  would  not  be  admissible  under  the  olli' r,  then 
they  are  not  indictments  for  the  same  offense  in  a  legal  sense,  aiihou;j;h 
they  may  relate  to  the  homicide  of  the  same  i)erson.    The  nih    is  laid 
down  by  Bishop  in  the  first  volume  of  his  Criminal  Law,  sec  tin  ss.j, 
third  edition,  as  follows:  "The  jeopardy  is  not  the  same  wlicn  ilu;  two 
indictments  are  so  diverse  as  to  i)reclude  the  same  evidence  I'rnni  .sus- 
taining both;"  and,  in  the  next  section,  he  says:  "The  tost  is,  wiiotlier, 
if  what  is  set  out  in  the  second  indictment  had  been  proved  ai  ihf  trial 
under  the  first,  there  could  have  legally  been  a  conviction;  wlnii  thiic 
could  have  been,  the  second  can  not  be  maintained;  when  tin  n   conid 
not,  it  can  be."    In  support  of  this  i)Gsition,  the  author  cites  Ililr  r.  The 
State.  9  Ycrg.  357;  Pcciilc  v.  ^Varrcn,  1  Park  338;  People  v.  Mini.  id. 
44r.;    Durham  v.   The  People,   4   Scam.   172;    Commoniceallh   v.  t'urtiti, 
Tlialcher's  Grim.  Cas.  202.    Greenleaf  in  his  third  volume,  si-'-Mon  :ifl, 
says:     "The  former  judgment,  in  these  cases,  is  jilcaded,  witli  an  avur- 
meat  that  the  offense  charged  in  both  indictments  is  the  sann';   and 
the  identity  of  the  offense,  which  may  be  shewn  by  parol  evi'lcnc  c.  is 
to  be  proved  by  the  prisoner.     This  may  be  generally  done  liy   pro- 
ducing the  record,  and  showing,  that  the  same  evidence  whicli  i:;  neies- 
sary  to  support  the  second   indictment   would   have  been  adi:!issi!)le, 
and  sufficient  to  procure  a  legal  conviction  upon  the  first."     ilc  ( itis 
Arch.  Cr.  PI.  87:   Hex  v.  Emden.  9  East  437;   Hex  v.  Clark,  1   H.  ami 
Blng.  473;  Rex  v.  Taylor,  3  B.  &  C.  502;  1  Ross  on  Crimes,  s:\2:  Cum- 
monwealth  v.  Roby,  12  Pick.  49G;  Rex  v.  Yandercomb,  2  Leach.  C.  L. 
7GS. 

The  last  cited  case  Is  a  leading  one  upon  this  subject.  Mr.  Insiire 
Buller  delivered  the  resolution  of  the  judges,  and  after  referrini;  to  2 
Hawk.  P.  C.  ch.  35,  sec.  3;  Foster  3G1;  Rex  v.  Pedley.  1  Leadi  -:\'l, 
stated  their  opinion  as  follows:  "These  cases  establish  the  priiui:le, 
that  unless  the  first  indictment  were  such  as  the  prisoner  miglit  have 


T«" 


STAPLES  V.  STATE. 


681 


been  convicted  upon,  by  proof  of  the  facts  contained  in  the  second  in- 
dictment, an  acquittance  on  the  first  indictment  can  be  no  bar  to  the 
secijud." 

in  Durham  v.  The  People,  4  Scam.  173,  this  court  said:  "One  general 
rule  on  this  subject  we  apprehend  to  be,  that  where  tlic  facts  charged 
in  tlie  second  indictment  would,  if  true,  have  procured  a  conviction  on 
the  llrst,  then  the  plea  of  autre  fois  atquit  is  well  pleaded." 

In  the  case  at  bar,  the  facts  charged  in  the  second  indictment  were 
not  admissible  in  evidence  under  the  first,  and  could  not  legally  have 
produced  a  conviction  on  that  indictment.  The  plaintiff  in  error  has 
made  the  record  of  the  proceedings  under  the  first  indictment  a  part 
of  Ills  plea,  and  it  appears  therefrom,  that  no  evidence  was  in  fact  of- 
IVi-cd  to  the  jury  under  that  indictment.  The  People's  attorney  doubt- 
less ascertained,  tliat  his  evidence  would  be  legally  inadmissiljle,  and 
declined  to  offer  it.  Had  he  offered  to  lirove  the  charge  contained  in 
llio  jiresent  indictment,  to  wit,  that  John  Guodel  lulled  Adam  Zim- 
niirman  by  beating  him  upon  the  head  with  a  gun,  the  evidence  as  to 
the  mode  of  perpetrating  the  homicide  would  have  been  inadmissible. 
The  first  indictment  was  not  sustainable  by  proof  of  the  facts  alleged 
in  the  second,  and  it  necessarily  follows,  that  in  regard  to  the  offense, 
that  is,  the  facts  charged  in  the  second  indictment,  the  plaintiff  in 
error  has  never  been  in  legal  jeopardy.  To  persons  not  accustomed  to 
legal  distinctions,  it  may  seem  a  solecism  to  speak  of  two  indictments 
as  cliarging  different  offenses  when  they  relate  to  the  murder  of  the 
same  person,  but  it  is  nevertheless  undoubtedly  true,  that,  for  the  pur- 
pose of  judicial  proceedings,  an  indi(  tment  charging  a  murder  to  have 
been  done  l)y  shooting  with  powder  and  shot  from  a  gun,  does  describe 
a  murder  legally  different  from  that  described  in  an  indictmeni  charg- 
ing the  same  defendant  with  a  murder  of  the  same  person,  liy  beating 
him  tipon  the  head;  and  this  for  the  reason,  that  if  all  tlie  facts  charged 
in  the  second  indictment  were  proved  or  admitted,  the  murder  de- 
scribed in  the  first  indictment  would  not  be  legally  estal)lishe(l  so  ys 
to  authorize  a  conviction.  One  of  the  material  ingredients  necessary 
to  a  legal  descrii)tion  of  the  offense  would  be  wanting.  The  proof 
might  show  a  murder,  but  it  would  not  be  legally,  and  for  the  pur- 
lioses  of  trial  and  punishment,  the  same  murder  described  in  the  indict- 
ment.    We  must  affirm  this  judgment. 

Judgment  affirmed. 


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i! 


682  AMERICAN  CRIMINAL  REPORTS. 

Crosky  V.  Statk. 

—  Fla.  — .  —  35  So.  Rep.  153. 

Decided  October  30,  1903. 

Vabiaxce:      Unnecessary  desci-iptive  aUegations   as   to  oivnership  of 

property. 

1.  In  an  indictment  or  Information  charging  the  crime  of  liroakins 
and  entering  a  building  with  Intent  to  commit  larceny,  it  is  not 
necessary  to  allege  the  name  of  the  owner  of  the  articles  in  said 
building  which  the  defendant  intended  to  steal;  yet,  whore  tlie 
said  articles  arc  alleged  therein  to  be  the  i)ro[)erty  of  a  certain 
nanied  ))crson.  il  is  incumbent  upon  the  State  to  prove  saiil  owner- 
ship as  laid,  and  a  failure  so  to  do  will  constitute  a  fatal  variance. 
(Syllabus  by  the  Court.) 

Error  \o  tlio  Circuit  ("durt,  Dade  Ctunity;   II(;ii.   .Mindr  S. 
(Tones,  -Judfit'. 

Jacob  ( 'roskv,  convicted  tit"  burglary,  liriiigs  error.     Ju'Vcrscd. 

George  A.   Worleij  and  7i.  //.  Sei/mour,  for  the  ])hiiniiir  iu 
error. 

J.  B.  Willi  field,  Attorney  General,  for  the  State. 

SiiACKi.Kioi;!),  J.  The  ])]aintiflF  in  error,  Jacol)  f'rosky,  was 
indicted,  tricil,  and  convicted  in  tlie  Circuit  Court  of  Daile 
County  of  the  crime  of  breaking  and  entering  '*th(^  sldri'lidnsc 
and  barroom  of  one  W.  X.  Woods,  with  intent  to  (■(iiiiinit  a 
fehuiv,  to  wit.  with  intent  to  steal,  take,  and  carrv  awav  ccnaiii 
,  goods  ami  chattels  therein,  being  of  the  value  of  twctily-livo 
dollars  (  f  the  i)ro])erty,  goods,  and  chattels  of  the  saiil  W.  X. 
Woods."  Tlio  ])laintiff  in  error  was  sentenced  t<i  cuntiiiciiu'iit 
at  hard  labor  in  the  State  Penitentiary  for  a  period  of  five  year?;, 
and  seeks  rcvcr-al  lure  by  writ  of  error.  Three  en-nrs  arc 
assigned,  but  all  ])reseut  the  single  question  as  to  wIicIIut  dr 
not  the  testimony  was  sufficient  to  "Ujiport  the  verdict,  iiiil 
hence  they  uuiy  be  considered  to^j^etlu'r.  Setting  forth  the  testi- 
mony in  detail  would  be  profitless.  Suffice  it  lo  state  that  there 
is  considerabli  ooufliet  therein,  b\it  it  plainly  appears  therefrom 


For  casrs  in  previous  vclumco  on  any  subject,  see  Table  of  Topics  i.i 
this  volume. 


il 


CROSKY  V.  STATE. 


that  although  the  building  alleged  to  have  been  broken  into  and 
entered  by  del'endaut  was  the  property  of  the  said  \V.  X. 
Woods,  as  charged  iu  the  indictment,  the  goods  and  chattels 
tliercin  contained  were  not  the  property  of  the  said  Woods,  Does 
this  fact  constitute  such  a  variance  between  the  crime  e'larged  in 
tlio  indictment  and  the  evidence  as  to  make  it  fatal  and  war- 
rant a  reversal  'i  As  was  said  by  this  court  in  Charka  r.  Slate, 
;](>  Fla.  (!i>l,  18  South.  oi)[),  "it  is  not  necessary,  in  an  Indict- 
ment under  our  statute  for  breaking  and  entering  a  tjuildiu"-  iu 
the  nighttinu!  witli  intent  to  conmiit  a  misdemeanor,  by  steal- 
ing, to  allege  that  the  property  intended  to  be  stolen  was  actual- 
ly in  the  building  at  tlie  time  of  the  breaking  and  entry  thereof." 
In  Jones  r.  Stale,  18  Fla.  88<),  it  was  held  that  ''in  an  indict- 
ment for  burglary  in  the  nighttime,  with  intent  to  conuuit 
larceny  of  money,  goods,  and  chattels,  it  is  not  necessary  to 
aver  what  speeitic  money,  goods,  or  chattels  were  intended  to 
be  stolen,  or  the  name  of  tlic  owner  thereof."  In  Fells  v. 
State,  20  Fla.  774,  it  was  held  that  "the  rule  is  well  settled 
that  the  ownership  of  the  building  so  burglariously  entered 
nuist  bo  alleged  iu  the  indictment."  Also,  see  Glreiis  v.  State, 
40  Fla.  200,  23  Simth.  8:)0;  Leslie  v.  State,  35  Fla.  171,  17 
South.  T);").-);  Kennedy  v.  State,  31  Fla.  428,  12  South.  858. 
While,  iu  an  indictment  for  the  crime  charged  in  the  indict- 
ment in  the  case  at  bar,  it  was  not  necessary  to  allege  the  namo 
of  the  owner  of  the  articles  which  the  defendant  intended  to 
steal,  yet,  where  the  said  articles  were  alleged  therein  to  be  the 
jiroperty  of  a  certain  named  ])erson,  we  are  of  the  opinion  that 
it  was  incundK'ut  upon  the  State  to  prove  said  o\nier.-]iip  as 
laid.  Having  failed  so  to  do  constitutes  a  fatal  variance,  for 
which  the  judgment  must  be  reversed.  See  Commonireatth  v. 
Moore,  130  :^iass.  45;  Neuhrandt  v.  State,  53  Wis.  89,  9  X". 
W.  824;  2  East's  Fleas  of  the  Trown,  514;  1  Eish.  Crim.  Proc. 
§5;  488,  581,  582;  TniderhiU's  Trim.  Ev.  5;!^  32,  33;  Wharton's 
Crim.  Ev.  j!  04;  1  Pvusseirs  Crimes  (7th  Am.  Ed.)  825.  For 
an  interesting  discussion  of  the  question  of  variance,  also  sec 
Barrett  v.  Dof/gett,  0  Fla.  332. 

As  the  case  will  have  to  be  reversed  upon  this  point,  it  be- 
comes unnecessary  for  us  to  consider  or  discuss  the  (""idencc 
any  further,  or  to  cxjjress  any  ojunion  thereon. 

For  the  error  fouml,  the  judgniient  of  the  Circuit  Court  must 
be  reversed  and  a  new  trial  awarded,  and  it  is  so  ordered.    The 


111} 


!l 


til 


i  « 


I  .* 


>/ 


684 


AMERICAN  CRIMINAL  REPORTS. 


costs  of  tliis  appellate  proceeding  are  to  be  taxed  apiin.-t  \\n> 
Comity  of  Dade. 

Taylor,  C.  J.,  and  IIockf:i{,  J.,  concur.    Cakter,  V.  .].,  iiipI 
Maxwell  and  Cockukll,  J  J.,  concur  in  the  opinion. 

Note  (By  J.  F.  G.). — In  connection  with  the  above  opinion  wo  suggest 
the  reading  of  four  Englidh  cases,  as  follows: 

REX  V.   FRANCIS   FINCH. 
1  Moody  Crown  Cases,  418. 
18.''.4. 
Indictment  for  stealing  a  copper  pipe  fixed  to  the  diccUiiid-hoii.'ic  of 
A.  and  B.  is  not  supported  by  proof  of  stealing  a  pipe  ilvui  to 
tico  rooms  of  ichich  A.  and  B.  are  separate  tenants  in  thv  .■mme 
house. 

Crown  Case  Reserved. 

The  prisoner  was  convicted  before  Mr.  Justice  Gaselce,  at  the  Sum- 
mer Assizes,  1S3-1,  for  the  city  of  Norwich,  of  having  on  the  ."ih  of 
July,  stolen  six  feet  of  copper  pipe,  value  five  shillings,  the  pro|H>ily 
of  John  Symonds,  fixed  to  dwelling-house  of  Elizabeth  Druniniee  and 
Sarah  Allen. 

The  second  count  stated  the  pipe  to  be  the  property  of  the  two 
women,  fixed  to  their  dwelling-house. 

The  case  turned  upon  the  question,  whether  the  dwelling-houso  was 
properly  described  as  the  dwelling-house  of  the  two  wonicu.  The 
dwelling-house  was  the  property  of  the  prosecutor,  in  the  same  yard 
with  and  adjoining  to  his  own  dwelling-house.  It  consisted  of  two 
rooms,  one  on  the  ground  floor,  the  other  up  one  pair  of  stairs;  one 
room  was  in  the  occupation  of  one  of  the  women,  the  other  in  that  of 
the  other  woman,  as  separate  tenants  to  Symonds.  The  pipo  was 
placed  for  bringing  down  the  water  from  the  roof,  and  dpacemlod  per- 
pendicularly, passing  on  the  outside  of  and  against  both  rooms,  part 
against  the  celling  of  each  room. 

Under  these  circumstances  the  question,  whether  the  house  was 
properly  described,  appeared  to  the  learned  Judge  to  be  at  least  doubt- 
ful enough  to  warrant  the  taking  the  opinion  of  the  Judges  upon  it. 

In  Michaelmas  Term  JS?A,  all  the  Judges  (except  Lord  Lyndlnirst, 
C.  B.,  Park,  J.,  and  Bolland,  B.),  met,  and  having  considered  the  case, 
were  unanimously  of  opinion  that  the  conviction  was  bad. 

REX  V.  WHITE. 

1  Leach's  Crown  Law,  286. 

1783, 

The  name  of  the  oicner  of  the  house  is  essential  in  an  indictment  for 

burglary,  dnd  for  stealing  in  the  dwelling-house. 

At  the  Old  Bailey  February  Session  1783,  the  prisoner  was  indicted 

for  burglary  in  the  dwelling-house  of  John  Snoxall,  and  stealing  therein 

goods,  the  property  of  A7in  Lock. 


1 


CROSKY  V.  STATE. 


685 


It  appeared  that  It  was  not  the  (IwellinR-honse  of  John  l=!nnxnn  and 
It  was  therefore  held  (a),  that  the  prisoner  could  not  bo  found  Kuilty 
cither  of  the  burglary,  or  of  stealing  Lo  the  amount  of  forty  shillings 
i!i  the  dwelling-house,  under  the  12  Ann.  c.  7.  for  it  is  essential  in 
l)(ith  cases  to  state  in  the  Indictment,  the  name  of  the  person  in  whose 
liouKO  the  offences  are  committed  (b). 

(a)  By  Mr.  Justice  BuUer,  and  Mr.  Justice  Gould. 

(b)  In  October  1785,  WilUam  Woodicnrd  was  indicted  for  stealing 
in  the  dwelling-house  of  Sarah  Lttnns.  It  appeared  in  evidence,  that 
her  name  was  Sarah  London.  Mr.  Sergeant  Adair  Recorder,  held  the 
variance  fatal  to  the  capital  part  of  the  indictmeai. 

REX  V.  DAVID  JEXKIXS  AND  ANOTHER. 

Russell  &  Ryan   2U. 
If  a  house  is  let  to  A  and  a  icarehotisc  under  the  same  roof,  and  loith 
an  iiiternal  communication  to  the  house,  to  A  and  B;  the  ivare- 
house  in  an  indictment  for  hurglanj  cannot  he  described  as  the 
dwelling-house  of  A. 

Crown  Case  Reserved. 

The  prisoners  were  tried  and  convicted  before  Mr.  Justice  Glbbs,  at 
the  Warwick  Lent  assizes,  in  the  year  ]8in,  upon  an  indictment  for  a 
burglary  charged  to  have  been  committed  in  the  diceUing-house  of 
Josiah  Richards,  at  Birmingham. 

Mrs.  Richards,  it  appeared,  was  the  owner  of  a  dwelling-house  and 
warehouse,  under  the  same  roof,  and  communicating  together  within; 
there  was  also  an  external  door  to  one  of  the  warehouses. 

The  dwelling-house  Mrs.  Richards  let  to  her  son,  Josiah  Richards, 
the  licrHcn  mentioned  in  the  indictment.  The  warehouse  she  let  to 
her  son  Josiah  and  his  younger  brother  at  a  separate  rent.  The  two 
luctheiH  carried  on  their  joint  business  in  the  warehouse.  The  com- 
munication between  the  warehouse  and  the  dwelling-house  was  con- 
stantly used  by  Josiah  the  elder  brother.  The  younger  brother  had  no 
interest  in,  or  concern  with,  the  dwelling-house. 

The  prisoners  brolce  into  the  warehouse,  and  plundered  it  in  the 
night. 

The  learned  judge  reserved  this  case  in  order  to  have  the  opinion  of 
the  judges,  whether  under  these  circumstances,  the  prisoners  were 
proi)erly  convicted  of  breaking  into  the  dwelling-house  of  Josiah 
Richards. 

In  Easter  terra,  15th  of  May,  1S13,  at  a  meeting  of  all  the  judges  (ex- 
cept Lord  Ellenborough  and  Mansfield,  C.  J.,  who  were  absent),  it  was 
unanimously  agreed  that  the  warehouse  could  not  be  considered  as  the 
dwelling-house  of  Josiah  Richards,  as  laid  in  the  present  indictment, 
Josiah  Richards  holding  the  house  in  which  he  lived  under  a  demise 
to  himself  alone,  and  the  warehouse  under  a  distinct  demise  to  him- 
self and  his  brother.    The  convictiou  was  held  wrong. 


t'r 


II 


-'  i  i 


^h\ 


086 


AMERICAN  CRIMINAL  REPORTS. 


REX  V.  L.  H.  S.  DURORE. 
1  Leach's  Crown  Law,  390. 
1784. 
//,  in  an  indictment  on  the  lilavk  Act,  for  maliciously  shontiitf/  at  an- 
other,  the  offence  he  laid  to  have  been  committed  Ji  the  dircU- 
ing-house  of  John  Brewer,  evidence  that  the  name  uf  the  uiciicr 
of  the  house  ivas  James  Brewer  is  a  fatal  variance. 
Old-Bailey  December  Session  1781. 
L.  //.  S.  Durorc  was  indicted  before  Mr.  Baron  Hotham  on  tho  statute 
9  Geo.  1.  c.  22,  for  maliciously  shooting  at  //.  Sandon,  In  the  (hvclllng- 
house  of  James  Hrcirer  and  John  S<andy. 

It  appeared  upon  the  evidence,  that  it  was  in  the  dwelUng-licuso  of 
John  Brcucr  and  James  Sandi/. 

The  Court.  This  is  a  fatal  variance.  The  prosecutor  has  thought 
l)roper  to  state  the  names  of  the  owners  of  the  house  where  the  fact  is 
charged  to  have  been  committed.  Perhaps  this  averment  was  nut  neces- 
sary to  the  validity  of  the  indictment;  for  the  statute  says,  "who  .^hall 
maliciously  shoot  at  any  person  in  any  dwelling-house,  or  idhcr  iihicc:" 
but  having  averred  that  it  was  in  the  house  of  John  lircncr  and  Jiunc^ 
Sandy,  he  is  bound  to  prove  it  as  laid;  now  the  evidence  Is,  that  Mr. 
Brewer's  christian  name  is  not  John  but  James,  and  that  Mr.  S(iii(ly'.<i 
christian  name  is  not  James  but  John;  and  when  a  man  is  char^MMl  with 
a  capital  offence  of  so  serious  a  kind  as  the  present,  every  slri(  taoss 
which  the  law  requires  must  be  attended  to. 
The  Jury  therefore  found  a  verdict.  Not  Guilty. 


State  v.  Pjiilups. 

27  Wash.  364—67  Pac.  Rep.  608. 

Decided  February  5,  1902. 


Vauia.nck:  Information  charging  larceny  of  lawful  U'litcd  ,^tates 
money,  is  not  supported  by  proof  of  larceny  of  $.').00  and  $lii.iii) 
bills,  and  of  Canadian  bills — Instructions. 

1.  An  information  charging  defendant  with   the  larceny  of  lawful 

money  of  the  United  States  is  not  sustained  by  proof  showing 
that  the  money  stolen  was  Canadian  bills. 

2.  Evidence  that  the  package  stolen  contained  three  $100  Canadian 

bills,  one  or  two  $5  and  six  or  seven  $10  bills,  without  describing 
the  latter  bills  In  any  particular,  is  not  sufficient  to  ostablish 
that  lawful  money  of  the  United  States  was  stolen. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


STATE  V.  PHILLIPS. 


6d7 


8,  Where  the  Information  charged  defendant  with  the  larceny  of  hiw- 
fill  money  of  the  United  Statea,  an  Instruction  of  the  court  I3 
erroneous  as  going  beyond  the  issues,  when  it  charges  that  the 
property  alleged  to  have  been  taken  and  carried  away  by  de- 
fendant consisted  of  certain  Canadian  bills,  said  to  have  a 
value  in  this  country  of  over  thirty  dollars;  and  that  the  jury 
should  determine  whether  or  not  these  Canadian  bills  were 
feloniously  taken  and  carried  away  from  the  prosecuting  witness 
at  the  time  alleged  in  the  information. 

ApiH'iil  fmm  SuiHTior  ('(Uirt,  Siinlioiuish  ('duiity;  TTon. 
Frank  T.  livid,  fliuluc 

Tliuinas  riuUiits,  cdiivictc  <1  of  larcoiiv,  apjioals.     Kcvcrspd. 

f^'ilas  M.  Shiplcij  and  Dcnnci/  d'-  JIuthcrt,  I'or  tlio  aiipcllaiit. 
Walter  S.  Fidlun,  for  the  Stale. 

Ki:.\vis,  ('.  ,r.  The  defeiidiiiit  was  convicted  of  tlie  crime  of 
lan'i'iiv,  and  sentenced  to  10  years'  iniprisdiuncnt.  The  iu- 
fdrniation  charged  grand  larceny  in  the  foHowing  form: 

"Tliat  he,  the  (lefen(hint,  iu  King  County,  State  of  Washing- 
tun,  (in  tho  oth  (hiy  of  duly,  A.  I).  IMIIJ,  tiit>  personal  goods 
and  i)roperty  of  F.  W.  .Miller,  con.sisting  of  three  hundred  and 
eighty  ($3S())  dollars  iu  lawful  uioucy  of  the  United  States, 
of  the  value  of  three  hundred  and  eighty  {$;5S())  (hdlars  iu 
lawful  money  of  tho  United  States,  did  willfully,  unlawfully, 
and   feloniously  take,  steal,   aud  carry  away." 

The  verdict  of  the  jury  found  "the  did'eudant,  Thomas 
I'hillips,  guilty  as  charged."  At  the  trial  tho  evidence  describ- 
ing tlio  pr^iperty  stolen  was  given  hy  the;  ])rosecuting  witness, 
Miller.  .Miller  stated  that  lio  had  iu  a  ])aper  ]iackage  in  tho 
inside  p.ocket  of  liis  vest  three  $100  Canadian  bills,  one  or  two 
$.")  and  six  or  seven  $10  bills,  without  describing  tlie  latter 
bills  in  any  nuinner.  The  evidence  also  tended  to  show  that 
the  defendant,  in  connection  with  two  othevi,  st(de  the  ])ackago 
with  the  Canadian  and  other  bills  from  the  prosecuting  witness. 
The  record  has  boon  carefully  examined,  and  no  further  or  more 
specific  description  of  tho  money  contained  in  tho  ])ackago 
stolen  can  bo  gathered  from  tlie  testimony.  The  statement  of 
the  jirosecuting  attorney  in  0]ieniug  the  case  before  the  jury 
was  that  defendant  feloniously  stole  and  carried  away  $3*^0  law- 
ful numoy  of  the  United  States,  of  the  value  of  $380  lawful 
iTionev  of  tho  United  States,  the  personal  property  of  another. 


■f\  I 


1 

!     . 


w^ 


\\\ 


2i'> 


n  I 


688 


AMERICAN  CRIMINAL  REPORTS. 


Tlio  court  ^nvo  tlio  following  instructloii,  to  which  cxccptiMn 
was  duly  lakcii  by  counsel  for  defendant: 

"Tho  property  nlk-ged  to  luivo  been  taken  and  carried  nwnv 
by  tho  defendant  in  this  case  consists  of  certain  Canadiiiii  \>\\U 
said  to  lijivi-  ,1  \.;luo  here  in  this  country  of  over  thirty  dullars. 
It  is  for  you,  ^enllenien,  to  detorniine  whether  or  not  the  (^.i^ 
in  this  case  sire  thai  this  property — these  Canadiiiii  hills— were 
feloniously  taken  and  carried  away  from  tiio  proseoutiii;;'  wit- 
ness at  tho  time  alleged  in  tho  information.  Von  must  .il-o  he 
satisfied  that  the  property  was  of  the  valuo  of  thirty  ddlhir-." 

In  section  iJbo[),  J'lallinger's  Ann.  Codes  &  St.,  it  i^  pro- 
vided: 

"In  an  indictment  or  information  for  larceny  or  eiuliczzle- 
nient  of  nioiny,  hank  not(>s,  certificates  of  stock,  or  vnlimlilo 
securitiis,  or  for  a  conspiracy  to  cheat  or  defraud  a  |ii  i-nn  (,1 
any  such  projierty,  it  is  sudicieut  to  allege  the  1:ire<Miv  nr  eiu- 
bozzleuieiit,  or  iho  conspiracy  tu  cheat  ami  defraud,  tn  1,|.  ,if 
money,  bank  notes,  certificates  of  stock,  or  valuable  seciiritii'-;, 
■without  specifying  the  coin,  number,  deuoniimition,  ,,r  kind 
thereof." 

It  was  said  in  State  v.  Hanslior.  '.)  Wash.  St.  1l>  (  l'T  I'ac. 
1029),  with  reference  to  an  objectiiui  urged  against  ilic  iu- 
fornuUion  that  it  did  not  state  facts  suflicieut  to  cdii-iiinic  a 
crime,  not  nuulo  until  after  convict inu,  that  the  allcLiiiiii  11  "a 
quantity  of  money  of  the  value  of  $77''  is  suflicieut.  It  is 
apparent  that  by  the  provisions  of  the  abov(^  secti.iii  'lie  trvm 
"mouey"'  is  a  suflicieut  description  whei'  ;lie  Ian    j'nc,  to 

trial  without  re(iuiring  a  more  <'■  '  ~|  <'citic:iti..ji,  llur  it 
seems  that  "money,"  as  used   i  -latiite,   is  I      ful  'iiiiiKy 

or  legal  tender,  either  nit  tal  or  i-eiicy,  of  the  I  iiilol  St.iics. 
It  M'ill  bo  observed  that  the  scciinn  of  ;iie  Code  (pp  led  dis- 
tinguishes  money   from   baid\   notes,    c(    ;ificates   of   sti'ck 


or 


valuable  securities.     Wharf.  Cr.  PI.  »S:  Prac.   ( !Mh  K<l. 


I'lO 


^Mun•t.  Cr.  Ev.  (0th  Ed.)  §  110a;  Bish.  St.  Crimes  (;;d  Kd.j 
§340;  Levis  v.  State,  28  Tex.  Ap]).  140  (12  S.  W.  TV)); 
Otero  V.  Same,  30  Tex.  A])p.  4.'')0  (17  S.  W.  lOSl) ;  Wuiir  v. 
Same,  35  Tex.  Cr.  R.  170  (32  S.  W.  772,  OO  Am.  St.  Rep.  -H. 
But  it  will  be  observed  the  charge  in  the  informatiMii  is 
stealing  lawful  money  of  tho  United  States.  It  s(('iii-  that, 
if  a  description  is  specified,  and  thus  nia<le  material,  in  the 
information,   it  must  be  proven.     3  Rice,  Cr.  Ev.   §218;  1 


HAUDY  V.  STATL:. 


G89 


Croinl.  Ev.  §§  G3,  05;  JSlalc  v.  Van  Clevc,  ',  Wash.  012  (;>2 
Tac'.  -1(11). 

It  is,  howTver,  ur^',v<l  l).y  <"ouuscl  I'm-  the  State  lliat  it  aii[M'aiv-i 
from  till!  eviileiicc  tiiat  at  least  liuvfiil  iikmicv  of  the  L'liitid 
States  nljove  the  value  of  .$;)()  was  in  the  |iacka,i>('  taken  I'miii 
the  ]iro.seeiltitif;-  witness.  IJut,  as  siijii-ested  hrlnrc,  we  have  nul 
feiiacl  siillieii'iit  evidence  to  sustain  this  eontenliun.  It  is  also 
urged  that  the  objection  of  variance  between  the  proof  and  the 
charge  in  the  indietuK'nt  was  not  seasonably  made  bv  de- 
fendant, and  that  it  was  too  lato  after  the  verdict  to  raise  such 
(.lijiction  upon  motion  f<ir  u  new  trial.  .15ut  the  objection  to 
the  charg(!  »d"  the  court  was  seasimably  niaile.  An  inspection  of 
the  instruction  discloses  that  it  was  error.  There  was  no 
intimation  in  the  information  or  in  the  statement  of  the  jjrosc- 
cuting  attorney  that  d(  t'endant.  was  charged  with  stealing  Ca- 
nadian bills.  C'amnlian  bills  are  not  money  within  the  moan- 
ing of  .ihillingi'r  (section  (is.")!),  supra),  and  cainiot,  mider  t!ie 
most  e\i)ansivc  and  stcoielavy  delinition<,  be  (h-cribed  as  hr.vfnl 
money  of  the  United  Stales.  The  instruction  of  the  court 
assumed  that  the  det'end.ant  was  tried  ui)on  a  charge  outside 
the  information,  and  the  jury  were  authorized  to  convict  upon 
such  assumption. 

'J'lie  judgnunt  is  reversed,  and  the  cause  remanded  for  a 
new  trial. 

FiLi-EiiXox,  ^lofNT,  and  IIadi.kv,  J.T.,  concur.  ' 


ITakdy  v.  Static, 

112  Ga.  1!^ 37  S.  E.  Rep.  95. 

Decided  October  2C,  1900. 
Vakiance  ill  description  of  animal. 

SiMMoxs,  C.  .1.  Where  thf.  Indictment  charged  the  accused  with  the 
larceny  of  a  "fawn-colorod  .Jersey  heifer,  about  eighteen  months  old," 
and  the  proof  showed  the  larceny  of  a  fawn-colcrcd  heifer,  this  was  a 
fatal  variance. 

(Syllabus  by  the  Court.) 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 

Vol.  XIII— 44 


!  i 


l;l 


lii 


hi 


fi 


I 


690 


AMERICAN  CRIMINAL  REPORTS. 


Error  from  Superior  Court,  Catoosa  County;  lion.  A.  \V. 
Fite,  Judge. 

Gus  Hardy,  convicted  of  larceny,  brings  error.    Reversed. 

Mann  cO  Terry,  for  the  plaintiiT  in  error. 

Sam,  P.  Mdddox,  Solicitor  General,  for  the  State. 

Judgment  reversed.     All  the  Justices  concurring. 

NoTK  (By  J.  F.  G.).— In  Reed  v.  State,  16  Ark.  499,  a  conviction  was 
reversed,  because  the  proof  simply  showed  the  killing  of  an  Imlian  of 
name  unknown,  the  indictment  having  charged  that  the  accui-cd  killed, 
"a  certain  Wyandott  Indian,  whose  name  is  unknown  to  the  gruud 
jury." 

In  a  Mississippi  case,  the  defendant,  indicted  for  rape,  was  doscrihed 
as  a  negro  slave.  The  court  refused  to  instruct  the  jury  to  acquit,  if 
the  jury,  from  the  evidence  believed  that  the  defendant  was  a  mulat- 
to slave.  For  this  error,  the  conviction  was  reversed. — Dick  v.  Utato,  30 
Miss.  6?.l. 

In  h'obertson  v.  State,  97  Ga.  206,  22  S.  E.  Rep.  974,  Mr.  Justice 
Lumpkins  says: 

"While  it  is  not  essential,  in  an  indictment  for  the  larceny  of  an  ani- 
mal, to  describe  It  by  earmarks,  yet,  if  this  be  done,  the  descriptlcn 
must  be  proved  as  laid.  Crenshaw  v.  State.  CA  Ga.  119.  CoiistniuoiUly, 
where  an  indictment  for  the  ..irceny  of  a  hog  alleged  that  it* had  a 
crop  off  the  left  ear,  an.l  a  slit  in  the  right,  and  the  prosecutor  tosutiel 
that  the  hog  stolen  from  him  had  a  crop  off  the  right  oar  and  a  Kplit  in 
the  left,  there  was  a  fatal  variance;  and  this  variance  was  not  cured  by 
the  eviderce  of  another  witness  who  testified  that  the  stolen  bos  had  a 
crop  off  one  ear  and  a  split  in  the  other,  but  did  not  state  wliicli  car 
had  the  sjilit  and  -vhich  the  crop." 

In  Morgan  v.  State.  61  Ind.  447,  3  Am.  Crini.  Rep.  246,  an  Indictnuut 
charging  the  larceny  of  a  Smith  &  We&ton  revolver  was  held  liot  (o 
be  sustained  by  i)roof  of  the  stealing  of  a  Smith  &  Wesson  revolver. 

In  Vaminonircalth  v.  Dcjardiii.  126  INlass.  46,  3  Am.  Criin.  li'ji).  2D0, 
it  was  held  that  an  Indictment  that  the  accused  published  "picturr.^ 
figures  and  descriptions  of  naked  girls,"  was  not  sustained  by  proof  cf 
the  publishing  of  photographs  of  two  girls  naked  down  to  tlio  v.aist. 

For  other  cases  as  to  variance,  in  previous  volumes  of  the  Anierican 
Criminal  Reports,  consult  the  gk.nkr.m,  i.ndkx.  in  the  tenth  volume;  also 
XI,  13,  17,  19,  192,  349,  432,  446;  XII,  110,  146. 

We  will  close  these  notes  by  giving  three  English  cases  in  full,  us 
follows: 


HARDY  V.  STATE. 


691 


An  ii 


At 


REX  V.  CHARLES  LEE. 
1  Leach's  Crown  Law  464. 
1786. 
A  variance  on  the  lii  Geo.  3  c.  5G  between  a  uox  uampant  and  a  lion 

PASSANT  held  fatal. 
Old  Bailey,  May  Session,  1786. 
This  was  an  indictment  on  the  statute  13  Geo.  3,  c.  56  for  removing 
from  one   silver   knee-buckle   to    another  silver    knee-buckle    certain 
stamps,  marks  and  impressions  to  tvit  the  King's  head  and  the  Lion 
rampant;  with  intent  to  defraud  the  King  against  the  statute,  etc. 

On  producing  the  silver  knee-buckle  in  evidence,  it  appeared,  that 
the  mark  was  a  Lion  passant  instead  of  a  Lion  rampant;  and  the  Court 
held  the  variance  fatal. 

REX  v.  RICHARD  COOK. 

1  Leach's  Crown  Law,  123. 
1774. 
■  Hctment  for  stealing  a  cow  can  not  he  supported  hy  evidence  of 
stealing  a  heifer. 
Crown  Case  Reserved, 
the  Lent  Assize  for  the  County  of  Warwick,    in    March    1774, 
Iii(.hard  Cook  was  tried  before  Mr.  Serjeant  Sayer,  on  the  14  Geo.  2  c. 
(i  and  15  Geo.  2  c.  34,  for  stealing  a  cow,  value  5  1.  the  property  of 
Edmund  Chambers. 

The  larceny  was  very  clearly  proved;  but  it  appeared  upon  the  evi- 
dence, that  the  animal  stolen  was  a  female  beast  of  the  ox  kind,  only 
two  years  and  d  half  old,  that  had  never  had  a  calf;  and  that  a  female 
beast  of  the  ox  kind,  how  old  soever  it  may  be,  is  always  called  a 
Keif  or,  until  it  has  had  a  calf; 

U|)on  these  facts  being  found,  it  was  submitted  by  the  prisoner's 
Counsel,  that  the  evidence  did  not  support  the  charge  in  the  indict- 
ment;  and  therefore  the  Court  ought  to  direct  the  Jury  to  acquit  the 
prisoner.  But  as  the  possibility  of  preferring  a  better  indictment  at 
the  then  assize  was  precluded  by  the  Grand  Jury  being  discharged,  the 
learned  Serjeant  left  the  case  generally  with  the  Jury;  and  they 
found  the  prisoner  gvAlty,  subject  to  the  opinion  of  the  twelve  Judges 
upon  the  question  submitted  by  the  prisoner's  Counsel. 

Tiie  judgment  was  accordingly  respited  and  the  question  referred. 
And  all  the  Judges  (absent c  DeGray,  C.  J.)  were  of  opinon,  That  as  the 
statute  upon  which  the  indictment  was  founded  mentions  both  heifer 
and  cow,  in  descrihing  the  several  animals  they  were  designed  to  pro- 
tect, the  one  must  have  been  used  in  contradistinction  to  the  other;  and 
theiofore  that  the  evidence  did  not  support  the  indictment. 

(SiB-NOTE  to  Rex  V.  Cook — By  J.  F.  G. — This  case  is  also  known  as: 
Cook's  Case,  2  East  P.  C.  616;  and  as  such  it  is  cited  and  followed,  in; 
Rc.r  V.  Loom,  1  Moody's  C.  C.  160,  and  Rex  v.  Piiddifoot,  1  Moody's  C.  C. 
217;  both  Crown  Cases  Reserved.  However,  see  Reg.  v.  Spicer,  im- 
mediately following  as  part  of  chese  notes.) 


It 


I 


^mJ*^*- 


692 


AMERICAN  CRIMINAL  REPORTS. 


REGINA  V.  EDWARD  SPICER. 

1  Denison's  Crown  Cases,  82. 

1845. 

Prisoner  indicted  under  stat.  7  <t  8  Geo.  .},  ^.  ,?9,  s.  ,?J,  for  stcaliu!) 

"sheep." 

The  jury  found  that  the  animal  so  described  ivas  a  "lamb."  Indict- 
ment held  good. 

Crown  Case  Reserved. 

The  prisoner  was  indicted  before  Mr.  Baron  Aldcrson,  at  the  Jlaid- 
stone  Spring  Assizes,  1845,  for  sheep  stealing. 

The  indictment  v.as  in  the  common  form,  and  only  described  the  ani- 
mal as  "a  sheet)." 

It  appeared  on  the  trial  that  it  was  doubtful,  whether  it  was  a  lamb 
or  a  sheep,  it  being  between  nine  and  twelve  months  old. 

On  this  point,  there  was  evidence  both  ways,  and  the  counsel  for  the 
prisoner  addressed  the  jury  on  that  point  alone. 

The  jury  in  answer  to  a  question  put  them,  stated  that  in  coninio.i 
parlance,  according  to  the  usual  mode  of  describing  such  animals  in  the 
coantry,  it  would  be  called  a  lamb. 

There  was  no  doubt  of  the  fact  of  the  prisoner  having  stolon  it. 

The  learned  Baron  directed  a  verdict  of  guilty,  reserving  tho  rjiipstiou 
for  the  opinion  of  the  Judges,  and  respiting  the  sentence  on  the  inisoii- 
er  to  the  next  Assizes. 

This  case  was  considered  by  all  the  .Judges,  except  Parks  R.,  Maulo 
J.,  Coleridge  J.,  and  I'latt  B.,  who  wore  absent. 

Pollock,  C.  B.,  Patteson  .1.,  Williams  J.,  Wightman  J.,  Cros.'^well  J., 
held  the  conviction  to  be  wrong. 

Lord  Denman  C.  J.,  Tindal  C.  J.,  Alderson  B.,  Coltman  J.,  Rolfe  B., 
Erie  J.,  held  it  to  be  right. 

Judgment  was  therefore  given  for  the  Crown  (a). 

(a)  li.  V.  Looms  and  others.  1  Mood.  1  Cr.  C.  1(!0,  it  v.'as  there  held  that 
an  indictment  under  stat.  15  Oeo.  2,  c.  H4,  for  steiling  sheep  would  not 
support  a  conviction  for  stealing  lambs.  The  statute  si)ecificd  lambs 
as  well  as  sheep;  so  does  stat.  7  &  S  Geo.  4,  c.  21.),  s.  25.  It.  v.  riKhliioot, 
1  ibid.  247,  an  indictment  under  the  last  mentioned  statute  for  stealing 
a  sheep,  is  not  supported  by  proof  of  stealing  an  cvc.  bccauso  the  stat- 
ute specifies  eice  and  sheep.  R.  v.  Douglas,  1  Campb.  213.  An  in- 
dictment under  stat.  30  Geo.  3,  c.  58,  for  stealing  a  parcel  would  net 
si'pport  a  conviction  for  stealing  a  basket,  because  the  statute  speci- 
fied baskets  and  parcels  (ppr  Lord  EUcnboroitgh). 

It  is  believed  that  the  princiijle  of  the  decision  in  the  Text,  is  that 
an  indictment  describing  a  thing  by  its  generic  term  is  suiiportcd  hy 
proof  of  a  species,  tchich  is  clearly  comprehended  uithin  siirh  ilrsrrip- 
tion;  notwithstanding  that  the  statute  under  which  the  imiiitniont  i^ 
framed,  mentions  both  the  genus  and  the  species.  A',  v.  Looms,  and  /?. 
('.  Paddifoot,  must  therefore  be  considered  to  be  overruled. 

Sub-note  (by  J.  F.  G.)— It  will  be  observed  that  at  the  hearing  of 


wm 


JONES  V.  STATE. 


im 


the  case  of  Regina  v.  Spicer,  three  judges  were  absent,  and  that  of 
the  remaining  eleven,  five  considered  the  conviction  wrong.  Mr.  Deni- 
son  in  his  note  suggests  that  this  case  overrules  two  previous  cases, 
decided  in  1827  and  1829;  but  no  mention  of  those  cases  is  made  in  the 
text  of  the  report. 


Jones  v.  State. 

Texas,  Court  of  Criminal  Appeals— 62  S.  W.  Rep.  758. 

Decided  April  24,  1901. 

Variance.     Aggravated  Assault — Description  of  instrument  used. 

The  information  charged  an  aggravated  assault  and  battery  com- 
mitted by  means  of  a  bottle.  The  evidence  showed  the  means  to  be  two 
glasses:  Held,  That  there  was  variance  between  the  information  and 
the  proof. 

Ajipoal  from  Gonzales  County  Court;  Hon.  W.  W,  Glass, 
Judge. 

Lonion  Jones,  convicted  of  aggravated  assault  and  battery, 
a])ii('als.    Reversed. 

C.  K.  Waller,  for  the  appellant. 

liohcrt  A.  John,  Assistant  Attorney  General,  for  the  State. 

Davipsox,  p.  J.  The  information  charges  appellant  with  an 
aggravated  assault  and  battery  upon  one  Hansford  by  means 
of  a  bottle,  which  inflicted  serious  bodily  injury. 

The  evidence  shows,  beyond  controversy,  from  all  the  wit- 
nesses, that  appellant  used  two  glasses, — one  described  as  a 
leer  glass;  and  vhe  othei*,  a  small,  thin  glass.  The  evidence 
does  not  support  the  verdict.  Herald  v.  Stale,  37  Tex.  Cr.  E. 
40!),  .35  S.  W.  G70. 

Where  thoro  arc  several  ways  of  violating  a  statute,  and  the 
pleader  has  made  his  seh^ction,  ho  must  rely  upon  that;  and  the 
charge  of  the  court  must  conform  to  that  allegation,  lx>cause 
that  is  the  issue  on  the  trial. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


111 


694 


AMERICAN  CRIMINAL  REPORTS. 


There  are  several  ways  of  committing  an  aggravated  a'ssnnU 
spccitically  set  out  in  tlie  statute;  and,  where  the  |i]t'ii(|ci'  has 
selected  one  of  these,  the  proof  must  correspond,  and  the  cliaroe 
.must  conform  to  the  allegation,  otherwise  no  case  is  made. 

The  judgment  is  reversed,  and  the  cause  remanded. 

Note. — Compare  this  case  with  Ouedel  v.  People,  incorporated  iu  the 
notes  following  Staples  v.  State. 


Dkummkr  v.  State. 
— Fla.— ,  —  33  So.  Rep.  1008. 
Decided  March  10,  1903. 

Variance:     Assault  with  intent  to  murder — Qist  of  offense — Descrip- 
tion of  weapon  used. 

1.  Under  the  provisions  of  section  2403,  Rev.  St.  1892,  it  is  not  neces- 

sary to  the  crime  of  assault  with  intent  to  murder  that  the  as- 
sault shall  have  been  made  with  a  deadly  weapon.  Tlio  L;ist  of 
the  offense,  under  this  statute,  consists  in  the  intent  with  wliidi 
the  assault  is  made;  and,  if  this  intent  is  properly  allos^Mfl  and 
proven,  the  instrument  or  appliance  used  is  imniatriial,  ex- 
cept as  it  may  serve  as  evidence  to  establish  such  intent.  Urmj 
V.  State,  33  South.  295,  44  Fla.  — ,  approved  and  followed. 

2.  It  is  sufficient  if  the  substance  of  the  charge  be  proved,  without 

regard  to  the  precise  instrument  used.  Though  the  indict ment 
charges  a  particular  weapon,  the  averment  is  substantially 
proved  if  it  be  shown  that  some  other  instrument  was  employed, 
which  occasions  a  wound  of  the  same  kind  as  the  instrument 
charged,  and  the  same  consequences  naturally  follow. 

3.  Under   an   indictment   which   charges   an   assault   with   intent  to 

murder  by  shooting  with  a  pistol,  a  conviction  may  be  liad  on 
proof  that  the  shooting  was  done  with  a  gun;  the  two  weapons 
b^ing  the  same  in  character,  and  inflicting  the  same  cluuiutcr 
of  wound. 

4.  The  indictment  and  evidence  examined,  and  no  material  variance 

found  between  the  crime  charged  and  the  proof. 

5.  Evidence  examined,  and  found  suihcient  to  sustain  the  verdict. 

(Syllabus  by  the  Court.) 


For  cases  In  previous  volumes  on  any  subject,  see- Table  of  Topics  In 
this  volume. 


DRUMMER  V.  STATE. 


695 


vl 


Error  to  Circuit  Court,  Walton  County;  Hon.  Lucius  J. 
Itoeves,  Judge. 

Gus  JJruminor,  convicted  of  an  assault  \vitli  intent  lo  kill, 
brings  error.     AlKrnied. 

W.  II.  Waison,  for  the  plaintiff  in  error. 

William  B.  Lamar,  Attorney  Gemral,  for  the  State. 

SiiACKi.KFOKK,  J.  At  the  fall  t(rni,  1002,  of  the  Walton 
Cdunty  Circuit  Court,  the  plaintiff  in  error  (hereinafter  called 
the  defendant)  was  tried,  convicted,  and  sentenced  upmi  an 
in<lictnient  found  at  the  Sprini;'  Term,  15)02,  of  said  cunrt 
charging-  that  the  said  defeiulant,  Gus  Drummer,  on  October 
10,  lUdl,  in  the  said  county  of  Walton,  "did  then  and  there 
unlawfully  and  from  a  premeditated  design  to  eifcct  the  (lenth 
iif  one  Tom  Sheffield,  a  hum:in  being,  nuike  an  assauh  upon 
tho  said  Tom  Sheflield  with  a  deadly  weapon,  hy  then  and  rhero 
unlawfully  and  from  a  prenu'ditated  design  to  effect  his  death, 
nidawfully  of  liis  nniliee  aforethought  and  from  a  ])reme<liiated 
ilcsigni  to  effect  the  death  of  the  said  Tom  Sheffield,  tlieu  and 
there  shooting  off  and  discharging  a  pistol  charged  and  londeil 
with  gunpowder  and  leaden  balls  at,  toward  and  ngainst  the 
siiid  Tom  ShelHeld,  again-^t  the  form  of  the  statute,"  etc.  l'"r<mi 
the  sentence  imiiosed,  this  writ  of  vvvov  is  taken. 

Some  11  errors  are  assigned,  hut  they  are  all  based  sub- 
stantially npnn  an  alleged  variance  between  the  offense  chiirged 
in  the  indictment  and  the  ])roof  adduced  at  the  trial,  in  that 
the  indictment  charges  that  the  deadly  wea])on  tised  liy  the 
defendant  in  connnitting  the  offense  charged  was  a  pistol,  while 
all  the  proofs  so  adduced  at  the  trial  were  to  the  effect  lluir  the 
deadly  weapon  so  nsed  by  the  defendant  was  a  gun.  This  Iteing 
true,  it  becomes  unnecessary  for  us  to  consider  the  several 
errors  assigned  in  detail.  Xo  eviihiice  was  introduced  by  the 
defendant  at  the  trial,  and  we  th.iuk  that  the  evidence  intro- 
diiced  ujX'U  behalf  of  the  State  amply  sustains  the  charge  hiid 
in  the  indictment,  and  that  the  jury  were  warrante(l  in  so 
finding  by  their  verdict,  ]irovi<1ed  there  was  no  fatal  variance 
between  the  criuK^  charged  in  the  indictment  and  the  proofs 
adduced  at  the  trial.  Indeed,  no  other  contention  is  nutde  liere. 
It  becomes  necessary,  then,  for  us  to  examine  this  question  of 
variance. 


lii  •  i 


ili 


H 


^1 


'\ ; 


;l 


G9(J 


AMERICAN  CRIMINAL  REPORTS. 


In  Bryan  v.  State,  19  Fla.  SG-i,  fourth  headnoto,  this  mun 
lias  hchl  that  "the  proof  imtst  show  that  the  killing  was  of. 
footed  in  the  nianucr  charged  in  the  indictniont,  hut,  wliuro 
thcro  is  no  pi.ssihility  of  his  having  b(  on  niislod  or  in  any  wav 
(Hiharra&scd  in  his  defense  by  the  variance,  it  will  h:  disre- 


garded." 


livv.  St.  1892,  §  2403,  under  which  the  indictment  in  this 
case  was  found,  provides  that  "whoever  conniiits  an  assauU  dii 
another,  with  intent  toconiniit  any  felony  punishable  witii  diath 
or  iniprisonment  for  life,  shall  be  punished  by  iniprisdiuueui 
in  the  State  Prison  not  exceeding  twenty  years."  The  (iiIkv 
portion  of  the  statute  has  no  api)lieability  vo  the  caso  at  bar. 
As  was  said  by  this  court  in  (Iraij  v.  Stale,  14  Fla.  — ,  :]:] 
South.  29."),  second  headnoto,  "under  the  provisi.)ns  of  scctitiu 
2403,  Kev.  St.  1S92,  it  is  not  necessary  to  the  crime  of  isssault 
with  the  intent  to  murder  that  the  assault  shall  have  been  made 
with  a  deadly  wiajHiu.  The  gist  of  the  otronse,  under  this 
statute^,  consists  in  the  intent  with  which  the  assault  is  made; 
and,  if  this  intent  is  j)roperly  alleged  and  j)r(iven,  the  instru- 
ment or  api)liauce  used  is  inunaterial,  except  as  it  may  serve 
as  evidence  to  establish  such  intent."  The  informati(rn  in  the 
case  of  Gray  v.  State,  supra,  charged  the  defendant  with  having 
couiniittx:'d  an  assault  with  a  certain  deadly  weapon,  to  wit,  a 
large  ])iece  of  sc:intling;  and  the  contention  was  iinnle  that  a 
large  ])iece  of  scantling  was  not  per  .se  a  deadly  weapon,  and 
that  therefore  the  information  was  iusnlficicnt.  The  (piestien 
of  variance  lx^twe<'n  the  ofl'cnse  charged  and  the  proofs  was  nut 
presented  for  consideration   in  said  case. 

r])on  an  examination  of  the  authorities,  rve  find  that  as  was 
sai<l  by  Earl,  J.,  in  Harris  r.  VeopJe,  (!4  X.  Y.  14?^,  'Mho  -irict- 
ness  of  the  ancient  ride  as  to  vin'ianc(>  iM'tween  the  proid'  and 
tho  indictment  has  been  much  r(daxed  in  modern  times.  \'ari- 
ances  are  regarded  as  material  b<  cause  they  umv  mi-lead  a 
]>rison(M'  in  making  his  def(  Jiso,  and  because  they  may  e.Np(i-o 
him  to  the  danger  of  being  again  ])ut  in  jeopardy  Uw  the  saiuc 
offense."  See  Abbott's  Trial  Kv.  ('rim.  Causes,'  .^.S:} ;  Shilr  r. 
Smith.  32  Me.  309,  .^.4  Am.  Dec.  57.S ;  1  :\rc('lain.  Trim.  Law, 
§  2(iO;  Uodfiers  v.  State.  .^)0  Ala.  102;  State  v.  Lauteiisrtilafpr 
22  Minn.  HU.  As  laid  down  in  Underhill's  Trim.  Ev.  §  314: 
"The  substance  of  homicide  being  the  ffdoniiuis  killing,  pn  ■  f 
of  a  killing  in  any  manner  or  by  auy  means  (hat  correspond 


DRUMMER  V.   STATE. 


G97 


substantially  witli  tlie  iiulictmoiit  is  sufficient.  All  the  (Ictaik 
of  the  oft'onse  need  not  be  la-ovcd  precisely  as  all('iic(!.  Pvooi 
of  a  sliootiiig  with  a  pistol  will  sustain  an  avenncnt  of  shootiii"' 
witli  a  gun,  and  rice  versa;  and  proof  of  killing  with  a  daager 
or  bowie  knife  will  sustain  an  avennent  of  death  from  stabbing 
with  a  dirk,  sword  or  similar  weapon." 

It  is  not  necessary  for  us  to  connnit  ourselves  mu'eservedly 
to  the  In-oad  doctrine  laid  down  in  the  first  ]ini't  df  ihe  ])re- 
ccding  qnotiition,  but  the  trend  of  modern  decisions  is  strongly 
in  that  direction. 

In  the  case  of  Ifitll  v.  Stale,  79  Ala.  32,  the  indictment 
charged  that  the  assiiult  was  nnide  with  a  razor,  while,  the  jn-odf 
tended  to  show  that  the  wound  was  iidlicted  with  a  pocketknife. 
The  court  ])e!ow,  in  the  general  charge,  instructed  the  jurv,  in 
substance,  that  it  was  immaterial  whether  the  assault  was  made 
with  a  razor  or  a  pocketknife,  and  refused  to  charge,  at  the 
request  of  defendant,  that,  if  the  jury  had  a  reason. >ble  doubt 
as  to  the  assault  being  made  with  a  razor,  they  nmst  acquit 
the  defendant.  The  Supreme  Court  of  Alabama  held  that  no 
error  was  committed;  stating  that  "it  is  sufficient  if  tlu^  sub- 
stance of  the  charge  l)e  ]iroved,  without  regard  to  the  pi'ccise 
iiistrnment  used.  Though  the  indictment  charges  a  particular 
weapon,  the  averment  is  substantially  ju'oved  if  it  be  shown 
that  some  other  instnuuent  was  employed,  which  occasions  a 
wound  of  the  same  kind  as  the  instrument  charged,  and  the 
same  consequences  naturally  follow." 

The  case  of  Tamer  r.-'Siate,  5)7  Ala.  57,  12  Soutli.  U,  is 
directly  in  point:  "The  indictment  alleges  the  deceased  came 
to  his  death  by  defendant's  sliooting  him  with  a  gun.  The 
]u'oof  showed  li(!  was  shot  with  a  pistol,  and  defendanv  objected 
to  the  evidence  of  his  having  Im'cu  shot  with  a  ])istol,  but  the 
Court  a<lmitti'd  the  evidence,  and  defendant  excoiiteil.  The 
variance;  is  immaterial,  since  the  two  weapons  are  the  same  in 
character,  and  inflict  \ho  same  character  of  wimnd." 

We  are  not  unnundful  of  the  fact  that  authorities  nuiy  be 
found  to  the  contrary,  but  Ave  are  of  the  opinion  that  the  law 
is  correctly  stated  in  the  two  Alabama  cases  just  cited,  and  that 
both  the  reasoning  therein  and  the  conclusion  reached  are  well 
founded.  While  the  precise  point  raised  in  the  case  at  bar  has 
not  been  passed  upon  by  this  court,  the  conclusion  which  we 
have  reached  was  foreshadowed  in  Bryan  v.  State  and  Gray  v. 
Slate,  supra. 


m. 


k 


698 


AMERICAN  CRIMINAL  REPORTS. 


We  have  carefully  considered  all  the  errors  assif^ucd,  niul  arc 
of  tlie  opinion  that  none  is  well  taken.  Therefore  the  juil^iiioiit 
of  the  court  below  must  be  affinned. 


People  v.  Webdeu. 

138  Cal.  145.— 70  Pac.  Rep.  1089. 

Decided  December  20,  1902. 

Vahiance — Indictment:     Variance  as  to  the  oicnershit)  of  a  railway 
car — Insufftcicnt  description  of  the  car. 

1.  Where  an  Information  charges  a  burglary  of  a  niilwuy  mr,  it  is 

fatal  variance  to  prove  ownership  in  a  different  {:oini);iriy  from 
that  alleged. 

2.  In  an  information  which  charges  a  burglary  of  a  railway  car,  tJiere 

should  be  a  particular  descrii)tion  of  the  car  by  statins  tlio  num- 
ber of  it,  or  such  other  description  as  would  distinguish  it  from 
any  other  car  in  the  same  train. 

Supremo  Court  of  California,  Department  Xo.  2,  ('oimiiis- 
sioners'  Decision. 

A])iieal  from  the  Superior  Court,  Solano  County;  Tlon.  A. 
J.  Buckles,  Judge. 

Edward  Webber,  convicted  of  burglary,  appeals.     liev(  rscil. 

Paul  C.  Harlan  and  0.  R.  Coghlan,  for  tho  appellant. 

Tirci/  L.  Ford.  Attorney  General,  and  C.  N.  Poal,  Assistant 
Attorney  General,  for  respondent. 

Chipmax,  C.  Defendant  was  accused  by  the  District  .\t- 
torney  of  Soliino  County  of  the  crime  of  burglary,  cdiuiiilitnl 
as  follows:  ''The  said  Edward  Webber,  on  the  ■21st  day  cf 
January,  A.  D.  1891,  at  and  in  the  State  of  Cidifoniia,  ■• 
did  unlawfully,  feloniously,  and  burglariously  outer  n  ccrtiiiM 
railroad  car  and  train,  to  wit:  a  railroad  car  and  trniii  nwiii  il 
and  operated  by  the  Southern  Pacific  Company,  a  cnrpuratinii. 
said  railroad  car  and  train  at  the  time  aforesaid  l)oing  in  tlie 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topici  in 
this  volume. 


PEOPLE  V.   WEBBER. 


prosecution  of  its  trip,  ami  Solano  (V.unt.y,  in  said  Sim.'  of 
California,  at  said  time  being  a  county  tlirough  wliidi  said 
car  and  train  passed  in  the  course  of  its  said  trip,  with  t'olonious 
and  burglari(ms  intent,  then  and  there  in  said  railroad  car 
and  train  to  commit  the  crime  of  lareeny ;  contrary,"  etc.  De- 
fendant was  found  guilty,  and  now  appeals  from  the  judi^iueut 
of  conviction  and  from  the  order  denying  his  motion  fur  a  new 
trial. 

Defendant  demurred  to  the  information  on  the  grounds  that: 
J''irst:  "That  it  does  not  sul)stantially  conform  to  the  rciiuire- 
ments  of  sections  (>r)0-D52,  of  the  Penal  Code";  and,  second: 
That  th(!  facts  stated  do  not  constitute  a  public  oII'imhc.  A 
motion  was  made  in  arrest  of  judgment  on  the  same  i;r  luiids, 
alleging  ])articularly  that  tlie  allegations  of  the  information 
"as  to  tli((  place  where  the  burglary  eliarged  was  eoiiniiiileil  are 
not  either  direct  <u-  certain,  but,  on  the  contrary,  are  indetinite, 
uncertain,  evasive,  inconsistent,  and  repugnant  to  one  aimllier," 
The  demurrer  was  overruled,  and  the  motion  was  denied.  De- 
fendant urges  these  rulings  ns  ei'ror. 

The  oifense  charged  in  the  information  was  laid  under  sec- 
tion 7S3,  ]'en.  ('ode,  which  provides:  "  "  *  ^^  And  when 
an  olVense  is  eoiiimitted  in  this  state,  on  a  railroad  train  or 
car  prosecnting  \\.-  tri|i,  the  jurisdiction  is  in  anv  county 
through  which  the  train  or  car  passes  in  the  course  of  her  trip, 
or  in  the  county  when-  the  trip  terminates."  This  section 
relates  to  the  (pu^stion  of  jurisdiction.  We  nuist  look  to  section 
1.")!),  of  the  IN'ual  Code,  for  a  definition  of  the  offen<e,  and  it 
is  there  provided:  "Every  i)ers()n  who  enters  any  lioiis(\  room, 
ajtartment,  tenement,  shop,  warehouse,  stor(%  mill,  barn,  >1nble, 
outhouse,  or  otlu  r  buihling,  t(>ut,  vessel,  or  railroad  car.  with 
intent  to  cojumit  grand  or  ]ietit  larceny,  or  any  felony,  is  guilty 
of  burglary."  The  evidence  was  that  the  car  shown  to  have 
been  entered  was  marked  "O,  S.  L.,"  and  was  the  ju'operty  of 
the  Oregon  Short  Tine  Kailway  Company,  and  was  innnbcred 
1  1,087,  and  that  this  company  is  distinct  from  the  Southern 
I'acific  Company. 

Appellant  contends  that  the  information  is  not  certain  as  to 
the  partienhir  circumstances  of  the  offense,  as  required  by 
section  9r>2,  of  the  Civil  Code,  in  this:  1.  That  the  particular 
car  alleged  to  have  been  burglarized  is  not  designated;  and 
2.   It  is  not  certain  as  to  where  the  offense  took  place.     It  is 


■i' 


il 


1 


1' 


1 


!. 


I.' 


I'' 


700 


AMERICAN  CRIMINAL  REPORTS. 


furilicr  coutomlcd  that  the  evicUnicc  is  iiisutiiciiMit  t 


tl 


10    VtT 


diet, 


aiu: 


1  that  there  wan  a  fatal  variance   lit 


II   Jil-tit'y 
IWmii   iho 


alloiiafiuii  and  ])r«Mjf  of  ownersliij*.  The  allciiatittii  is  that  dtj. 
feiulant  enti-rid  "a  eertain  railroad  ear  and  train,  tu  wit;  a 
railroad  ear  and  train  owned  and  o|)erated  liy  the  Souilicvn 
Paeilic  Conijjany,"  with  tVlonions  intent  "in  said  raili^iad  car 


an< 


1  train"  to  eomniit  the  erinie  of  hireenv.    The  staluic  df  A 


la- 


hania,  declared  that  "the  hrcakini;'  and  entry  into  a  railroad  car, 


in  wiiicli  iioods 


■X-     -x- 


are 


v«'l)t. 


*    with  ll 


steal 


•X- 


IS  bnriilarv 


•X-     -X-" 


It 


IC    lllll'lll     to 


was  iiclil  (u  lie  iIh. 


rule  that  when,  in  an  indictment,  it  is  neccssai'v  to  aver  owik  r- 
ship  of  ])ro])erty,  if  at  the  time  (tf  the  commission  of  ilic  unVuM' 
there  is  a  iieneral  and  s]H('ial  ownership  the  owiarsliip  may  lie 
allejied  in  eillier  the  i;('m'ral  or  sjiecial  owner,  and  ir  \\a-  said 
thai  llie  (pieslion  most  often  arises  wliii'  ut  the  time  i<\'  ihc 
stealinii'  the  ^'oods  were  in  ])ossession  of  a  hailee.  "An  aver- 
ment that  they  wen;  th(^  ])roperty'  of  tla;  hailee  or  of  ilic  Kailm' 
is  ii<M;<l,  if  supjMvrted  hy  ])riKd'  of  the  li'eneral  or  nt'  -pccial 
ownerslii])."  TlKM'iitrv  was  hcM  properly  alleiied  to  lie  in  a  ear 
the  |ii'o]iert_v  of  the  Louisville  iSe  Xashville  Itailroatl  < 'ii!ii|iaiiy, 
lhon,i:li  the  South  &  North  Alahama  Kailroad  ("ompaiiy  may 
have  had  the  ])(>ssession  and  use  of  it;  and  it  was  said:  "riiere 
must,  hnwever,  hav(^  heen  evidence  to  snppoi't  the  averiiieiit  of 
owner.-lii])."  The  jndLinient  was  reversed  for  faihire  to  jiruvo 
the  ownership  as  averred. 

In  Sla/r  v.  Hill.  -IS  W.  Va.  1,*]2,  3r.  S.  E.  S;il,  the  drlVudaiit 
was  convicted  of  hurylariously  hn'alsiiii;  into  a  hox  car  nii  ihu 
]»altimiire  &  Ohio  Uailroad  and  stealinii-a  hoi>:.  The  iiidiciiiietit 
alleiicil  that  the  ear  was  the  property  (d'  the  Pittshiu'i!',  rincja- 
iiati,  Chicaiijo  &  St.  Louis  Kailroad  Company,  in  the  ciistudy 
of  the  iJal'imore  &  Ohio  Kailroad  Company.  The  prn-(riitlnii 
failed  til  jirove  that  the  ear  was  the  property  of  the  enni|iaiiy 
alleiicii  to  1  (»  the  owner.  In  settinp-  aside  the  verdict  llie  cnurt 
said:  "The  car  hein^-  in  the  special  enstody  of  the  1 
Ohio  Kailroad  Company,  it  was  uot  necessary  to  allep>  ils  ixcn- 
oral  owiarship,  hut  an  alleviation  of  s|)eeial  owner-^hip  wnuld 
have  Ikcu  sullicient ;  hut,  havinu,'  allea'cd  the  ownership.  It  must 
be  ])rov(^n  aecordiuf^ly  for  tlu^  protection  of  the  prisoner:  ntlicr- 
■wise  he  couhl  he  auain  indicted  for  the  same  offense  ]n'iiveii  as 
))eiu,a:  !i  <lifferent  offense  from  tliat  allefied.  The  Ti.  &:  O.  K.  Co. 
may  have  in  its  care  and  custody  at  the  same  time  m;my  ein-s 


>a!tiiiioi'e 


PEOPLE   V.  WEDDER. 


701 


of  various  roads.     An   intlictuu'iit  fur  the  lu-ciil 


kill"'  luiii  ilio 


th 


liouso  of  (MIC  person  cannot  l)c  sustained  hy  \n f  nf  iircMkiii"' 

into  ihv-  lidiiso  of  aiiollicr.  And  an  indiclincnt  for  iuvikiiiii'  int(j 
tlic  car  (d'  a  fiivcn  railroad  cdiiijiany  cannot  !)(>  sustained  liy 
proof  of  l)rcakin^-  into  llii^  cat-  of  anotlicr  cuiiipniiy," — citiii-,' 
Wliarl.  Cr.  Ev.  S'-'K  i'lid  als(v  .Mclidii  Kii'a,  ^vllcre  it  is  said, 
"The  naiiio  oi  a  cori)ovati(in  must  he  correctiv  given,  ai 


III  iirnvcu 


as 


laid."     Citinir,  also,  Joliiisdii  r.  Sidle,  T-'J  Ala.  4s; 


.\ 


til. 


St.  K.  ;i!HJ.  It  was  held  in  J'mplc  r.  J'arh'r,  01  ("al.  1>1,  :i7 
I'ac.  o.'JT,  that  the  alle.n'ation  nf  ownership  of  the  jiroperty  en- 
Icrcil  is  necessary  "where  it  cdiisliluted  ihe  entire  and  only 
descri])tioii  of  the  barn  which  the  .defendant  is  charj^cd  wiih 
^'Idiiiously  entering'."  Jf  the  allegation  is  necessary,  the  ]iriM;l:' 
lUst  also  lie  necessary;  and  it  would  I'ollow,  in  aocurdaiu'e  with 
le  rule  that  the  allegation,  and  the  ]iioof  iiitist  agree,  that 
I  '(Mif  df  ownership  other  than  that,  allcg.d.  wmild  not  .-uppdrt 


the  ini'drnialioii. 


And  tl 


is  is  the  general  rule. 


J 


^.nc, 


JM.  k 


ailiiiii'  to 


I'rac,  p.  7')7,  and  cases  cit<'<l. 

We  think,  also,  that  therc^  is  fatal  uncertainty  ii 
particularize  the  car  alleged  to  have  heeii  Imrglarizi  d  hy  ntiiu- 
lier  or  sdiiu^  other  description  identifying  the  car  entered.  Ke- 
siioiideiit  ('(intends  that  this  was  no  more  necessary  than  that 
a  particular  room  of  a  hdiise  entered  with  burglarious  intent 
should  b"  described;  citing  People  r.  Young,  0.1  Cal,  22~u  3 


r 


Sl.'l.  and  Penpl 


II 


eiin/,  Ti 


("al.  4-ir),  19  Pac.  S;]().     Ti 


the  tir-t  (d'  these  easi's  the  allegatidii  was  that  the  defendant 
I'elonidii^ly  ent;>red  "the  building,  to  wit,  the  ticket  otHce.  of 
the  Central  I'acitic  liailmad  Cdnipany."  and  the  court  said: 
"Here,  where  the  room  in  a  building  was  known  as  the  ticket 
oflice,  it  was  ])ro|)erly  described  as  a  'building,  to  wit,  the  ticket 
dilice.' "  In  the  otlier  case  cited  the  point  decided  was  that 
liiit  oiie  dtVense  was  charjud  in  tlio  allegntion  that  def(Midant 
''J"(ddnioiisly  entered  the  hduse,  room,  a])artineut,  tenement, 
slio]),  warehouse,  store,  and  building  of,"  etc.  There  is  no 
analogy  be'^ween  a  l)uilding  of  many  rooms  and  a  train  of  many 
cars.     The  statute  does  not  sav  that  it  is  Imrglarv  to  f(doniouslv 


O 


ne 


enter  a  train  of  cars.  The  statute  says  ''railroad  car. 
may  commit  other  oiTcnses  on  a  train  of  cars,  but  he  can  only 
commit  burglary  of  a  railroad  car  of  the  train.  Each  car  is 
separate  and  distinct  from  every  otlier  car  of  the  train.  Cars 
are  being  added  to  and  detached  from  the  train  at  points  along 


702 


AMERICAN  CRIMINAL  REPORTS. 


flu*  lino  during'  ita  trip;  niid  then,  too,  on  llircM<'li  Hikn.  such 
118  tlio  lino  of  Southern  I'ai'itic  Company,  there  are  maiiv  irnins 
freight  and  passenger,  running-  daily.  The  defendiinl  -IkmiIiI 
be  inforniod  with  soino  degree  of  certainty,  at  liast,  iis  lo  ihc 
particular  <n»r  he  is  charged  with  having  feloniously  cuicrcil. 
Then-  is  no  diliicidty  in  ascertaining  the  fact,  f(»r  all  ciirs  licnr 
sonui  distingiiishing  mark  or  nuud)er.  The  J'enal  ( 'ndc  (1,,,..^ 
not  ri'liovo  the  prosecuting  attorney  from  the  neees-iiy  df  in- 
forming the  defendant  with  reasonal>le  certainty  of  ilu'  iiiiliirc 
and  particulars  of  the  crime  charged  against  him,  llint  he  mnv 
jiropare  his  defense,  and,  ujion  accjuittal  or  conviclimi,  pli  nd 
his  jeopardy  against  further  prosecution,  rcople  r,  Lee,  l(i7 
Cal.  -i77,  4()  i'ac.  7.")4;  7Voyy/f  /'.  W'nrd,  110  Cal.  ;)(;!).  L'  1';,,.. 
S!)4.  Tn  the  information  iN'foro  us  the  defendant  con  Id  iiiMke 
no  intelligent  preparation  for  his  defense  without  hcing  )ii'(- 
pnrcd  to  d(*fend  against  the  charge  of  feloniously  entering  evirv 
car  that  was  in  the  train,  any  one  of  which  the  prosicnling  nt- 
tnniey  might  select  at  the  trial.  This  ])articular  Irnin  was  an 
extra  freight  from  Sacramento  to  OakIau<l,  and  was  cnnipd-cl 
of  cars  belonging  to  «liirerent  companies;  and  the  cninluclnr 
testified  that  "it  is  (piite  likely  this  train  stopped  to  pick  \\\> 
cars."  The  connection  of  any  one  c.ir  in  the  train  wiili  nnoilicr 
car  was,  as  suggested  by  defendant,  ''entirely  fortuiinns;  ;iiid 
only  a  particular  descri])tion  of  some  characl^er  or  oilier  cimld 
(litl'erentiate  the  particular  car  entered  frum  seme  other  cir 
that  was  not  entere<l,  and  that  uuiy  linve  U'cn  a  part  of  the  tinin 
for  only  a  short  time.''  The  information  fails  to  identify  cillur 
car  or  train,  wliether  a  freight  car  ov  freight  train,  or  wliidi 
of  a  hundi'ed  or  more  cars  passing  over  the  road  thai  dav.  (  r 
Avhether  the  train  was  mvivitig  from  Sacramento  to  Oakland  <  r 
rh'o  versa.  The  attorney  general  cites  S/afe  r.  Paikcr,  Hi  N'cv. 
70,  as  supporting  his  contention.  Tn  that  case  the  cuurt  lic'd 
the  evidc  nc(>  sutficient  to  support  the  allegation  of  dwiiersliip. 
The  description  was  given  as  a  smoking  car  Ixdonging  lo  the 
Central  Pacific  Ivailroad  Company.  If  the  case  can  be  .-aid  tn 
1<  Id  that  such  an  information  as  the  one  bt^fore  us  is  suliicieiitlv 
certain,  we  cannot  follow  or  approve  it. 

It  is  not  necessary  to  notice  the  errors  alleged  in  tlii^  ndiid'^- 
sion  and  refusal  of  testimony  and  in  giving  certain  in-truolieus 
Thev  may  not  occur  shouhl  the  case  \m  again  tried. 

The  judgment  and  order  should  be  reversed. 


'h 


BOYD  V.  COMMONWEALTH. 


7U3 


We  cnncur:   IIayxks,  C. ;  Oiuy,  C. 

For  the  ronsous  ^iviii  in  the  forcf-oing  opiiiioiij  the  jiulguionl 
niid  onlcr  arc  revorsod. 

]iIclAJ£LAND,    J.,    TKiMPLK,    ,J.,    IIk.VSIIAW,    J. 


BoYl)    V.    Co.Nr.MO.NWKALTir. 

22  Ky.  Law  Rci).  1(117.     M  S.  W.  Uei).  518. 

Decided  December  5,  lOnO. 

Vaiiia.nte— rnooK  of  ow.nku.siih'  in  i.aiickny:  Imlirtmcnt  di'strihrd 
horse  as  "hlcmished  in  left  cijc" :  proof,  hlcmishal  in  riiiht  ciie: 
no  variance.— Offers  to  sell,  etc.,  admitted  as  itrvof  of  oinii:rshii). 

1.  The  indictment  described  the  horse  allesed  to  have  been  stolen  as  a 

"darlt  brown  horse  about  fourteen  years  old,  Ijleniishcd  of  Mi 
eye,  and  about  15'(;  hands  high,"  but  the  evidence  doHcribes  the 
horse  as  being  blcniialied  of  the  right  eye.  Held,  that  the  aver- 
ment as  to  the  blemish  was  not  material;  and  that  the  judg- 
ment would  be  a  bar  to  tlie  stealing  of  any  horKo,  belonging  to 
the  same  owner;  hence,  no  variance. 

2.  Testimony  of  the  alleged  owner,  that  ho  took  the  horse  to  town, 

and  endeavored  to  sell  it;  also,  evidence  that  he  claimed  it  to  be 
his  own;  held,  sufficient  evidence  to  go  to  the  jury,  on  the  ques- 
tion of  ownership. 

Appeal  from  ("irouit  Court,  Flcniinu'  County. 

CJniu  Boyd,  convictod  of  horse  stoaliuii',  iippoals.     AiHrnud. 

W.  G.  Dcnr'nu)  and  R.  J.  Bahhtlt,  for  the  appelhuit. 

It.  J.  Brccl-'tnrnJfic  and  VUnn.  J.  Whillemorr,  for  the  Coni- 
nionvi-ealth. 

Dr  IvKLLK,  ,T.  Appelhuit  haviiin'  heen  convicted  of  j^tenlinsr 
a  horse,  the  property  (►f  O.  S.  Ivo^ers,  descrihed  in  the  indict- 
ment as  being  a  "(hirk-l)rown  horse  about  14  years  old,  blem- 
ished of  left  eye,  and  about  ir>Vo  hands  hifih,"  uriics,  as  a 
ground  for  reversal,  that  evidence  showing  the  stolen  horse  wa^ 
blemished  in  the  right  eye  was  a  fiital  variance,  which  entitled 
him  to  a  peremptory  instruction.  He  also  alleges  that  evidence 
of  the  ownership  of  the  horse  by  TJogers  was  insufficient.  The 
evidence  upon  this  latter  point  is  that  of  Rogers  himself,  who 


IJ 


f    ' 


(E'i 


s 


(•t 


1 11 


704 


AMERICAN  CRIMINAL  REPORTS. 


shoAvs  that  lie  took  the  I'jrse  to  town,  and  cndoavorod  to  .sell 
or  trade  it,  and  there  was  also  evidence  that  he  elainicd  it  as 
his  own.  This  w-.f^  sufficient  evidence  to  go  to  the  jury  vipuu 
the  question  of  ownership. 

If  they  believed  the  averment  of  the  indictment  as  to  owner- 
ship was  i)roven, — and  they  did, — then  the  misdescription  as 
to  the  location  of  the  blemish  became  immaterial. 

In  McBvide  v.  Com.,  13  Bush,  ;j;]S,  it  was  held  that  ''the 
charge  that  he  feloniously  took  a  hcjrse,  the  personal  proportv 
of  another,  naming  him,  is  sntlicietitly  specific  and  descriiitivo 
of  the  offense,  and  of  the  act  constituting  the  offense.  A  ver- 
dict and  judgment  under  an  indictment  of  this  dt'scviptiou 
would  bar  a  ])r()secutiou  under  any  other  indictment  cliariiiii-;' 
the  parly  with  larceny  in  taking  a  horse  from  the  i)arty  named 
])rior  to  tlie  indictment  under  which  a  verdict  and  judsiincnt 
had  been  riiidered." 

The  description  of  the  color  rf  the  horse  and  of  his  blem- 
ishes was  ^\^)t  iimterial,  unless  it  was  necessary  to  identify  tlio 
act  constituting  the  offense  charged,  a<,  in  the  case  cited,  where 
owTurship  was  all(\c;ed  in  one  ))ers(m,  und  the  jn-oof  showed 
ownershi])  in  another.  The  allegation  was  confessedly  unneces- 
sary, and  therefore  it  is  not  Avitliin  the  rule  laid  down  by  the 
superior  eoui-t  in  Com.  v.  llolJand.  7  Ky.  Law  Tl(~p.  -IW.  that 
"an  allegation  in  an  indictment  wliiidi  <lc~eribes,  delines,  (piali- 
fies,  f»r  limits  a  matter  material  to  be  charge<l  is  a  dr:-eri|)tivo 
averment,  and  must  lx>  proved  as  lai<l.''  \or  do  we  think  the 
doctrine  of  CJdi'h  v.  Com.,  10  B.  .M.m.  21:},  ajiplies,  thai  ''no 
allegatiovi,  whether  it  be  neeessnry  or  unneees'^ary,  more  oi'  Ics-^ 
particular,  which  is  descriptive  of  tln'  identity  of  what  is  Icu^iliy 
essential  to  the  charge  in  the  indictment,  can  be  regarded  a-; 
surplusage." 

We  vre  of  the  opinion  that  the  blemi-^hed  eye  was  not  de- 
scriptive of  the  identity  of  what  was  leuially  cs-^ential  to  the 
charge  of  stealing  a  horse,  the  [iroperty  of  O.  S.  Ivogers. 

Judanient  affirmed. 


Com 
whi( 
it  is 


was 
note 
The 


evid 


Notes  (By  J.  F.  G.).— Tho  above  decision,  so  far  as  it  rcliitos  to 
the  question  of  variance,  seems  to  be  not  only  at  vnviance  witli  tlie 
weight  of  authority,  but  a  departure  from  tlie  doctrine  announri"!  in 
Clark  V.  Commonwealth,  cited  In  the  opinion.  Tl:e  court  Itases  its  de- 
cision on  the  fact,  that  the  Indictment  would  have  been  sufflriont 
without  any  reference  to  the  blemish  in  tlie  eye,  citing  McBride  v. 


■■■■■■■■I 


BOYD  V.  COMMONWEALTH, 


705 


Commonivealth  and  that  therefore,  the  ownership  being  proved,  that 
which  was  unnecessary  to  be  pleaded,  remains  immaterial  after 
it  is  pleaded.  This  doctrine  is  not  consistent  with  that  announced  in 
the  Clark  Case,  which  was  decided  in  ISoj.  In  that  case,  the  accused 
was  charged  with  having  in  his  possession  certain  counterfeit  hank 
notes  of  the  Farmers'  Bank  of  KenUivkij,  and  of  other  named  banks. 
The  evidence  failed  to  show  that  the  notes  wore  of  the  banks  named  in 
the  indictment  and  the  court  refused  to  charge  the  jury  that  if  the 
evidence  did  not  conform  to  the  description  and  denominations  as  laid 
in  the  indictment,  that  the  accused  should  be  acquitted.  In  reversing 
the  conviction  the  Court  of  Appeals  of  Kentucky,  said: 

"The  doctrine  seems  to  have  been  well  settled  in  England  and  in 
this  country,  that  in  criminal  cases,  although  words  merely  formal  in 
their  character  may  be  treated  ns  suridiisaj^e,  and  rejected  as  such,  a 
descriptive  averment  in  an  indictment  must  be  proved  as  laid,  'and  no 
allegation,  whether  it  be  necessai-y  or  unnecessary,  more  or  less  par- 
ticular, which  is  descriptive  of  tlio  identity  of  what  is  legally  es- 
sential to  the  charge  in  the  indictraent  can  be  rejected  as  surplusage.' 
"So  where  a  person  or  thing  necessary  to  be  mentioned  in  an  in- 
dictment is  described  with  circuniiitances  of  gre;iter  particularity  than 
is  requisite,  yet  those  circumstances  must  be  proved,  otherwise  it  would 
not  appear  that  the  person  or  thing  is  the  same  described  in  the  in- 
dictment. (Whar.  Am.  Crim.  Law.  3d  ed.  291;  Roscoe  Crim.  Ev. 
101.) 

"Thus  on  an  indictment  for  coining,  there  was  an  alleged  possession 
of  a  die  made  of  iron  and  steel,  when,  in  fact,  it  was  made  cf  zine 
and  antimony.  The  variance  was  deemed  fatal.  (Dorsett's  Ca>}c.  5 
Roger's  Rec.  77.)  On  an  indictment  for  stealing  a  pine  log,  marked 
with  a  particular  mark,  it  was  hold  that  the  mark  must  be  proved  ;;s 
alleged,  and  the  de^.  ription  could  not  be  rejected  as  surplusage.  (G 
Maine,  170  And  in  the  case  of  United  States  v.  Porter,  3  Day's  Cases, 
2S3,  the  court  held,  that  an  allegation  in  an  indictment,  not  impGrti- 
nent  or  foreign  to  the  cause,  must  be  proved,  though  a  prosecution  for 
the  offence  might  be  supported  witliout  such  allegation. 

"Here  the  description  of  the  bills,  as  set  forth  in  the  indictment,  if 
not  essentially  necessary  to  the  prosecution  under  the  statute  referred 
to,  is  neither  impertinent  or  foreign.  And  having  been  allege;!, 
however,  it  devolved  upon  the  Commonwc.-^.lth  to  prove,  as  alleged,  that 
the  defendant  had  a  bill  or  bills  of  the  description  and  denomination 
stated,  with  intent  to  pass  the  same." 

It  will  be  observed,  that  the  court  does  not  express  any  intention  to 
overrule  the  doctrine  announced  in  the  Clark  Case  but  simiily  holds 
that  it  does  not  apply.  If  the  Clark  Case  is  not  overruled  the  Boiid 
Case  certainly  should  have  :  at  little,  if  any,  weight  even  in  Kentucky. 
Where  two  conflicting  i)recedents  exist  in  the  same  jurisdiction,  the 
mere  lot,ical  should  be  accepted. 
A  variance  bettccen  the  indictment  and  the  evidence  even  as  to  a 

Vol.  XIII— 45 


I  i|N 


iS 


l^ 


:*l*! 


Ill 


706 


AMERICAN  CRIMINAL  REPORTS. 


matter  necessary  to  be  pleaded  may  not  be  fatal,  if  it  does  not  prima 
facia  bear  on  the  questio7i  of  identity.  This  proposition  is  illustrated 
by  tlie  following  Englisti  cases: 

REX  V.  BEECH. 
1  Leach's  Crown  Law,  158. 
1775. 

'"he  word  undertood  instead  of  understood,  h'-W  'ft  immaterial  va- 
ria'ice  in  an  Indictment  of  perjury. 

In  the  King's  Bench,  Michaelmas  Term,  15  Geo.  3,  the  defendant 
had  been  convicted  of  perjury  in  an  affidavit;  and  a  rule  hart  been 
obtained  to  show  cause  why  the  judgment  should  not  be  arrc 

Mr.  Buller  and  Mr.  Dunning,  in  support  of  the  rule,  relit  il  upon  a 
variance  between  the  indictmei:t  and  the  affidavit.  In  the  affidavit  the 
defendant  swore,  that  "he  understood  and  believed,"  etc. 

The  assignment  of  the  perjury  in  the  indictment  was.  frnl  "he  had 
falsely  sworn  that  lie  undertood  and  believed,"  etc.,  i  luitliu;,  the  let- 
ter s:  and  they  insisted  that  this  being  a  variance  ir  si;-  material 
part  of  the  charge,  viz.  in  the  assignment  of  the  perjury  itself,  was 
Catal,  and  could  not  be  cured  by  verdict,  and  cited  2  Salk.  6G0.  Hutton, 
56.  Cro.  Jac.  133.     5  Co.  45.    Ld.  Eaym.  1224. 

Lord  ]\Iansfleld.  This  is  an  application  for  a  new  trial  in  an  in- 
dictment for  perjury,  upon  the  ground  of  a  material  variance  between 
the  affidavit  and  the  indictment;  the  letter  s  being  left  out  in  the  word 
understood.  We  have  locked  into  all  the  cases  on  the  subject;  some 
of  which  go  to  a  great  degree  of  nicety  indeed,  particularly  the  case  in 
Hutton,  where  the  word  indicari  was  written  for  iiidictari;  but  that 
case  is  shaken  by  the  doctrine  laid  down  in  2  Han-kins,  P.  C.  p.  2;!9. 
The  true  distinction  seems  to  be  taken  in  the  case  of  The  Queen  •. 
Drake,  2  ^alk.  CGO.  which  is  this:  That  where  the  omission  or  addi- 
tion of  a  letter  does  not  change  the  word  so  as  to  make  it  another 
word  (1),  the  variance  is  not  material. 

To  be  sure  a  greater  strictness  is  required  in  criminal  prosecutions 
than  in  civil  cases;  and  in  the  former  a  defendant  is  allowed  to  take 
advantage  of  nicer  exceptions.  But  this  is  a  case  where  the  matter  has 
been  fairly  tried,  and  where  the  omission  of  the  letter  s  certainly 
does  not  change  the  word.  Therefore  we  are  all  of  opinion,  Th;,t 
the  .Jury  did  very  right  in  reading  it  "understood"  and  the  rule  for 
arresting  the  judgment  must  be  discharged. 

(l)As  "air"  for  "heir."  And  see  Hart's  Case,  Worcester  Assizes 
1776,  post. 

NoTK  (This  note  Is  part  of  the  original  report  of  the  Case— .T.  F.  G.) 

The  introductory  words  in  the  Indictment  in  this  case  were,  "t') 
the  tenor  and  effect  folloicinfi." 

REX  V.  HART. 

1  Leach's  Crown  Law,  172. 

177G. 

A  variance  of  "rcicevd  "  instead  of  "received,"  is  not  fatal;  am'  the 


ERWIN  V.  STATE. 


707 


li; 


ivurds  '-as  foU(.u-fs  (that  is  to  say)"  do  not  bind  the  party  to  an  exact 
recital. 

Crown  Case  Reserved. 

At  the  Lent  Assizes  for  the  County  of  Worcester  1776,  Thomas  Hart 
was  tried  for  forging  a  bill  of  exchange,  which  was  set  forth  in  the 
indictment  "as  foUotvs  (that  is  to  say)," 

No.  21.'j  1.  42  00  00.     Hull,  April  24,  1775. 
"Two  Months  after  date,  i)loase  to  pay  to  Mr.  Thomas 
Jones,  or  order,  the  sum  of  Forty-two  Pounds,  Value 
received,  and  place  the  same  to  Account  of 

"George  Prince." 
"Messrs.  Halliday  cC-  Co."  Bankers,  London."' 
with  intention  to  'efrnud  one  Jolm  Griffllh.    There  was  a  second  count, 
for  uttering  it  with  the  like  intention. 

When  the  bill  was  produced  in  evidence,  it  appeared  that  the  word 
received  was  spelt  reicevd,  and  it  was  of  course  objected,  that  this 
variance  was  fatal;  for  although  the  two  words  have  the  same  sound, 
yet  as  the  prosecutor  had  undertaken  by  the  words  "as  follows  (that 
is  to  say)"  to  recite  the  bill  secundum  tcnorem,  he  was  bound  to  do  it 
literally  and  precisely. 

It  was  left  with  the  Jury  to  consider  whether  they  thought  the  two 
words  imported  one  and  the  same  thing;  and  they  found  the  pri.soner 
Guilty;  but  the  judgment  was  respited  for  the  opinion  of  the  Judges. 
The  Judges  conceived  it  to  be  a  proper  question  for  the  Jury;  for 
considering  it  as  an  abbreviation,  yet  if  it  meant  only  the  siime  word 
as  that  used  in  the  indictment,  it  would  not  vitiate,  for  then  it  could 
only  mean  the  same  thing.  Mr.  Justice  Gould  said,  he  considered  it 
as  the  same  word,  only  mis-spelt,  and  that  there  was  not  a  possibility  of 
mistaking  it  for  any  other  word  in  the  English  Language. 

See  also  Strange,  889,  where  on  "nul  tiel  record"  pleaded  "fegrave" 
for  "feagrave"  was  held  no  variance,  quia  idem  sonans. 


\ 


k    if 


ii 


Erwin  v.  State. 

117  Ga  296—4.']  S.  E.  Rep.  719. 

Decided  March  12,  1903. 

Varlwce — AssATi.T  WITH  I\TE\T  TO  CoMAtiT  Robbkry:  Variance  be- 
tween allegation  and  evidence  as  to  manner  in  which  offense  was 
committed. 

1.  Where  an  indictment  charged  the  accused  with  assault  with  intent 
to  rob.  in  that  he  "did  unlawfully  and  maliciously  make  an  as- 


I'"or  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


I.  I 


I 


in 


i     iH 


ro3 


AMERICAN  CRIMINAL  REPORTS. 


sault  upon  the  person  of  [H.],  and  by  menaces  in  a  forcible  aiv] 
violent  manner  demand  money  of  the  said  111.],  with  Intc^nt  to 
commit  a  robbery  upon  the  person  of  said"  H.,  a  verdict,  of 
guilty  was  unwarranted,  when  there  was  no  evidence  tiiat  tiic 
accused  by  menaces  made  a  demand  of  H.  for  his  money,  tlioiisli 
tlie  evidence  may  have  shown  that  he  committed  the  offense  iu 
some  other  manner. 

(Syllabus  by  the  Court.) 


Error  to  Superior  C'ourt,  Fulton  County;  IIou.  L.  S.  1 


voau 


J II 


<l"0. 


Jim  Erwiti,  coiivictod  of  assault  with  intent  to  rob.  1 


error, 


liev 


»,  linuii's 


ersed 


S.  C.  Crane,  for  the  ])laintifT  in  vvvor. 

C.  D.  Hill,  Solieilor  General,  for  the  State. 


Fusjr,  J.  Jim  Erwin  was  eduvieted  of  assault  'ivith  intent 
li>  rol).  J] is  motion  for  a  new  trial  heiiii:,'  overruled,  he  (■<- 
re|)te<l.  'J'lic  indietmeut  eiiarjicd  the  aecuscd  witli  the  oUVn-i' 
<if  assault  with  intent  to  r<il>,  for  tliat  lie  "did  nidawi'idlv  and 
nudieiously  niak(!  an  assaidt  upon  llie  jicrson  (d'  Kd  II  inlilMwcr, 
and  by  menaces  in  a  foivdbh'  and  vi<dent  manner  deniaMd  money 
(d'  the  said  Ed  llii^btower,  with  intent  to  eomnnt  ti  rol)b(  ry  upon 
tiie  ])erson  of  said  Ed  lliiihtower,  eoiitrary."  etc.     Se('ti<in  111!  of 

\\\  assault  with  intent  to  imI)  is 


the  Penal  Cod<'  is  as  follows 


lf( 


Aviiere  any  ])erson  sluill,  witli  any  otti'usive  or  daniicrous  weapon 
or  instrument,  unlawfully  and  inalieiously  assatdt  aiiolliei-,  nr 
)V  menaces,  or  in  and  bv  anv  forcible  or  violent  nianiier 


demand  anv  money,  lioods,  or  cb.illel-,  (d'  or  from  any  other 
person,  with  intent  to  eomnnt  robbery  upon  such  jterson.''  I  ii- 
der  this  section  assault  with  intent  to  rob  may  be  cominitteil  in 
three  ways:  (1)  Ey  uidawfully  and  maliclMusly  assiinllinir 
au'ither  with  any  otVensive  or  danii'erous  weaiion  or  inslrunient, 
with    iideiif-    to    commit    robbery    npon    such    persnii ;     (i')    '.iv 


menaces,  dennim 


lina' 


anv  nionev,  ijood 


iinv   o 


ther  ] 


)erson,   w 


or  cli:ilt(ds,  (d'  tir  I  rniii 
ilh    inteid,  to   coimnit    robbei-y   upon    sneli 


person;  and  (■'>)  by  any  fcuvible  or  vi(dent  mamier  deniiuid 
tiny  moTun-,  goods,  or  chattcds  (d'  or  from  another  jtei'soi 
intent  to  commit  robbery  upon  studi   jiersou.     Ti 


ini 


1.    Willi 


in  the  nrrsent  case,  .-is  we  have  seen,  c 


le   iiidiclnieiit 
flun-'icil  the  accused  willi 


11 


le   coni.ujssiou 


of  the  offense  bv   menaces   in  a  forcible  and 


ERWIN  V.  STATE. 


701) 


violent  manner  (Icmandin..'  monoy  of  Hij-htowr.  This  l)oii,u 
true,  conviction  wonld  ii„r,  l)o  authorized  mdoss  it  ai.])ciuvd 
JVoiu  tlie  evidence  that  the  accused  dcmiuuh'd  the  money  of 
Kd  llightower,  as  set  out  in  tlie  indictment.  There  was  :d)sn- 
lutelj  no  evidence  that  the  accused  l)y  menaces  made  a  demand 
ui)on  Ed  Iliglitower  for  his  nion(>y.  Tlie  evidence,  in  hrief, 
was  that  the  accused  and  Ilii^litower  iuul  Irhui  drinkin-  tu- 
iiether,  at  night,  in  a  sahion  on  Decatur  siveet,  in  the  cilv  of 
Athmta;  that  lliglitower  left  tlie  accused  to  go  home,  and  while 
lie  was  on  his  way  home  tlie  accused  overtook  him,  imd  told  him 
that  he  (Jlightower)  was  drunk,  and  he  had  come  to  take  him 
hiinie.  Jlightower  ]n-otested  that  he  Avas  not  drunk,  and  told 
lhe  accused  to  leave  him.  The  accused  insisted  that  llightower 
was  druidv,  and  look  hold  of  him,  saying  that  he  would  carrv 
hiui  home,  llightower  drew  hi:,  knife,  and  threatened  to  cut 
the  accused  unless  he  hd't  him.  The  accused  took  the  knife 
away  from  llightower,  and,  seizing  him,  thrust  his  hand  into 
Ilighto-wer's  jxK'ket,  and  took  hold  of  his  pockethook.  Illgli- 
tower  called  for  the  ])olice,  who  appeared  at  once,  and  arrested 
the  accused,  while  he  was  struggling  with  Hightower,  and  with 
his  hand  in  llighlower's  ])ockct,  upon  his  jiockethook.  The 
accused  said  nothing  to  llightower  in  referf'ucc  to  taking  or 
(lemamling  his  nioucy,  hut  all  the  time  ])relended  that  he  Avas 
emleavoring  to  take  him  home.  As  there  was  no  ])roof  that  tlu' 
olfens*'  was  committed  in  th:  manner  charged  in  the  indict- 
ment, the  verdict  of  guilty  was  unauthorized,  though  the  ac- 
cused nuiy  have  been  guilty  of  as-;au'r  with  intent  to  rob  in  a 
manner  not  charged,  and  therefore  the  court  should  have 
granted   a   now  trial. 

fTndgnu'nt  reversed.     V>y  5  dustices. 

NoTK. — AUhougli  the  name  of  the  uccusod  is  spelled  "Irwin"  in  the 
next  Ciiso,  a  comparison  of  the  two  cases  indicate,  that  it  is  a  second 
reversal  in  the  same  case. 

The  doctrine  announced  in  tlie  above  case  of  Enrin  v.  State,  funis 
mii)port  in  a  decision  of  the  Appellate  Court  of  Illinois,  First  District, 
in  the  following  case: 

LIMOUZE  v.  PROP!  E. 
5S  111.  App.  314. 

Mr.  .Tnstice  Oaky  delivered  the  opinion  of  the  Court: 

The  plaintiff  in  error  was  indicted  for,  and  convicted  of,  ohtainins 
money  hy  false  pretenses.  Tlie  indictment  chaises  that  the  pretiMiFe 
was  "that  the  iirice  of  certain  pieces,  parcels  and  lots  of  laud  that  he 


■Ih 


m 


710 


AMERICAN  CRIMINAL  REPORTS. 


had  purchased  for"  parties  named,  was  Jl.GOO,  and  that  he  as  nsent 
"had  paid  $1,G00  for  the  said  pieces,  parcels  and  lots  of  land"  whilti  in 
fact  the  price  "was  not  ^l.GOO  nor  any  sum  over  and  above  ?l,oO()." 

The  proof  is  that  in  the  latter  part  of  February  or  first  part  of 
March  1893,  the  plaintiff  in  error  and  the  prosecuting  witness  looked  at 
a  lot,  the  price  of  which  he  told  her  was  $1,600  and  that  he  could  get 
one  for  $1,C00;  that  April  21,  18911,  the  prosecuting  witness  gavo  the 
defendant  in  error  autaority  to  buy  it  for  $1,000;  that  next  day  he 
bought  it  for  $1,300  and  charged  his  principal  $1,600,  so  that  he  secretly 
kept  $300. 

The  variances  between  the  indictment  and  proof  are  substiintial. 
The  business  had  relation  but  to  one  lot — not  pieces,  parcel  and  lot.-;; 
and  the  representation  was  as  to  a  lot  to  be  bought — not  one  that  had 
been  bought. 

Morally,  the  differences  are  not  great,  but  they  are  as  fatal  as  in 
Brumlvy  v.  People,  150  111.  297,  where,  upon  an  indictment  chari;iiiK  a 
burglary  in  the  night  time,  it  was  held  that  a  conviction  could  not  be 
sustained  upon  proof  or  a  burglary  in  the  day  time. 

So  a  charge  of  giving  intoxicating  liquor  is  net  sustained  by  i)roof  of 
selling.    Humpeler  v.  People,  92  111.  400. 

The  niotion  for  a  new  trial  should  have  been  granted.  The  judgment 
is  reversed  and  the  cause  remanded. 


luwix  V.  State. 

117  Ga.  722—4!")  S.  E.  59. 

Decided  June  25,   1903. 

Vabiaxck — In  Name  or  Lnjikkd  Pkuson:     Practice  as  to  hill  of  CT'cp- 
lions. 


1.  Where  a  demurrer  to  an  indictment  Jias  been  overruled,  the  l.ill  of 

exceptions  to  sSch  judgment  must  bo  tendered  within  20  dayn. 

2.  For  the  protection  of  ftu'  accused  it  is  necessary  that,  in  an  iiiilicl- 

ment  for  an  offense  against  tlii'  person  of  amitlior.  \\w  person  in- 
jured should  be  referred  lo  by  his  correct  name,  if  it  ho  Known, 
or  by  some  name  by  which  he  is  commonly  and  i;onor:ill,v  ciilii'il. 
It  follows  that  where  tlie  indictmen.t  ncmrs  the  iicr^on  injured 
as  "Ed.  Hightower,"  and  the  proof  shows  that  his  name  is  'l-M- 
mund  Green  ilightower,"  and  that  he  Is  known  and  called  li\  tlin 
name  of  "Green  Ilightowcr,"  and  has  nc\ir  Ijcen  known  or  lalU'd 
by  any  other  name,  the  variance  is  fatal.    See  Wharton's  Cr.  Ev. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


',11 


IRWIN  V.  STATE. 


711 


§  99;  S  Gr.  Ev.  §  22;  1  Blsh.  Crlm.  Proc.  §  C77;  Maxw.  Crini.  Proc. 
GG;  Clark's  Crim,  Proc.  §  94;  Lcich  v.  titate,  15  S.  E.  007;  90  G;i 
95. 

(Syllabus  by  the  Court.) 

Error  to  Superior  Court,  Fulton  County;  Hon.  L.  S.  Uoan 
Juilge. 

Jim  Irwin,  convictod  of  crime,  brings  error.     Kcvcrscd. 

S.  C.  Crane,  for  pliiintift"  in  c  rror. 

C.  D.  IlUh  for  the  State. 

Simmons,  C.  J.     Judgment  reversed.     All  the  Justicca  con- 
cur. 

XoTK. — Compare  this  with  the  last  preceding  case.     They  arc  prob- 
iibly  reversals  in  the  same  (uise.    Also  compare  the  doctrine  announced 
in  it,  with  that  announced  by  the  same  court  in  Biggers  v.  State,  in  the 
present  volume. 
Here  are  two  English  cases,  bearing  on  the  same  subject: 
REX   V.  WILI^iAM   DEELEY. 
1  Moody,  Crown  Cases  303. 
Adding  a  fnlae  description  to   the  name  of  a  person,  ivlio  must  be 
named,  is  fatal,  though  it  he  not  necessary  to  give  any  descrip- 
tion. 

Crown  Case  Reserved. 

The  prisoner  was  tried  before  the  Honourable  C.  E.  Law,  Common 
Serjeant,  at  the  Old  Bailey  lie;-:i-ions  in  I'obruary,  1S31,  upon  an  iiuliit- 
ment  for  feloniously  marrying  Elizabeth  Chant,  widow,  Elizal)eUi 
Howe,  his  wife,  being  then  alive. 

It  appeared  in  evidence  (hat  Elizabeth  Chant  was,  in  fact  and  by  rep- 
utation, a  single  woman,  and  an  objection  was  taken,  that  she  was  im- 
properly described  in  the  indictment  as  a  icidow. 

The  jury  found  the  prisoner  N^uilty. 

The  learned  Conuuitu  Minjeant  res|)iled  the  sentence,  to  take  the 
opinion  (  i  Ihe  .Judges  on  Ihe  validity  of  this  objection. 

.\t  a  meeting  of  the  .hnti'.es  in  K.ister  T.Tm.  IN;;],  this  case  was  con- 
sidered by  all  the  .ludfU'w  (except  Park,  ■!.,  Oarrow,  B.,  Vaughan,  B., 
an(^  Taunton,  .1.),  and  \hey  were  utiauimously  of  opinion  that  the  nii.s- 
description  was  fatal,  though  it  was  lU'i  iit><essary  to  have  stated  mare 
than  the  name  of  the  party. 

REX  v.  FRANCIS  CLARK. 
Russell  &  Ryan  3."iS. 

huUvtment  for  the  murder  of  n  hofitard  child.  Hchl  IhcJ  a  Iwstard 
vns  improprih/  drsirihc'!  h;/  his  mother's  name,  he  not  having 
gained  that  name  by  reputation. 


I'  !l  i 


J 


ii 


fs 


'H    n 


"I 

i  I 


? 


712 


AMERICAN  CRIMINAL  REPORTS. 


Crown  Case  Reserved. 

The  prisoner  was  charged  by  indictment,  and  upon  the  corone)'s  in- 
quc.it  with  murder,  and  was  tried  before  Mr.  Justice  liohoyd,  at  Uie 
Lent  aaalzes  for  the  county  of  Devon,  in  the  year  1818. 

The  person  alleged  to  have  been  mumered  was  named  and  do- 
sc'ri'jLd  in  the  indictment,  as  "George  I^akeman  Clark,  a  base -born  in- 
fant male  child,  aged  three  weeks.  And  In  the  coroner's  hKjne.st  ho 
was  described  as  "George  Lakcman  Clark,  a  male  bastard  child  nbout 
three  weeks  old."  The  jury  were  charged  with  the  prisoner,  on  Ijoth 
the  Indictment  and  the  inquest. 

The  age  of  the  deceased  child,  and  that  it  was  a  base-born  son  of  the 
prisoner,  and  that  she  murdered  it,  as  charged  in  the  indictment  and 
inquest,  v,'cre  proved;  but  it  appeared  by  the  evidence,  that  tlic  chihl 
was  christened  George  Lakeman,  being  the  name  of  its  reputed  i'atlier, 
and  that  it  was  called  George  Lakouian,  and  not  Ijy  any  other  name 
known  to  the  witnes.seH,  and  that  the  mother  called  it  George  l.;ikeni:in. 
There  was  no  other  evidence  that  it  had  obtained,  or  w.na  called  liy  its 
mother's  name  of  Clark.  The  reputed  father  had  not  taken  to  it,  l)ut 
had  left  the  mother  and  child  to  the  charge  of  the  parish. 

The  prisoner  was  convicted;  but  judgment  was  respited,  in  oi'der  thnt 
it  might  be  submitted  to  the  consideration  of  the  judges  whethei'  ;is  the 
child  had  not  gained  the  surname  of  Clark,  his  mother's  name  i;y  rcpu- 
tation,  the  prisoner  was  rightly  convicted  on  this  indictment. 

In  Easter  term,  1818,  the  judges  met  and  considered  this  case.  They 
held  that  as  this  child  had  not  obtained  its  mother's  name  by  reiint:!- 
tion,  he  was  improperly  called  Clark  in  the  indictment;  and  as  there 
was  nothing  but  the  name  to  identify  him  in  the  Indictment,  the  con- 
viction could  not  be  supported,  (a) 

(a)     Co.  Lit.  3,  a.  G  Co.  G5.    3  Galk.  CG.  pi.  3. 


Jacok.s  v.  St.vtk, 

—  Fla.  — .  —  3.')  So.  Rep.  G5. 

Decided  -Tune  L'8,  1903. 

Vahianck:     Name  of  injured  party. 

1.  Where  an  indictment  for  a  criminal  assault  upon  and  carnal  abuse 
of  a  female  child  alleged  the  name  of  the  child  assaulted  to  have 
been  "Rosa  Lee  Nelson,"  and  the  only  proof  offered  to  sustain 
such  allegation,  showed  that  her  name  was  "Rosa  Lee  Ann,"  a 
conviction  cannot  be  sustained. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  In 
this  volume. 


JACOBS  V.  STATE. 


713 


2.  The  name  of  the  person  assaulted,  as  allegecl  in  the  iiulirtnient,  is 
an  essential  element  in  the  legal  doscviption  of  the  olTriise,  and 
the  failure  to  prove  it  as  laid  is  fatal  to  a  conviction  had. 
(Syllabus  by  the  Court.) 

Error  to  Circuit  Court,  Marion  County;  Hon.  William  S. 
]Jnil«K'l<,  Judge. 

^Villianl  Jacobs,  convicted  of  crime,  brings  error.     Reversed. 

Allrcd  cO  Davis,  for  the  plaiutilf  in  error. 

J.  B.  Whillidd,  Attorney  General,  f(jr  the  State. 

T.wi-oK,  C.  J.  Tlie  i)laintiir  in  error,  William  -lacdlis,  was 
indicted,  tried,  and  convicted  of  tlie  crime  of  carnal  almsi'  of 
a  female  child  under  the  age  of  10  years,  at  the  Spring  term, 
IIMi;;,  (»t'  the  ('ircnit  Ccnirt  i'(ir  .Mi'.ridii  Cniuily,  was  scnU'uced 
to  death,  and  seeks  reversal  here  by  writ  of  error. 

'J"he  error  as.signcil  is  the  <lenial  of  the  defendant's  motion 
for  new  trial.  The  lifth  ground  of  this  motion  is  as  follows: 
"Hecause  of  a  fatal  variance  hot  ween  the  allegation  and  the 
]iroof  in  said  caitsc,  in  this:  that,  the  indictment  I'liargcs  the 
offense  to  have  luH'n  committed  on  one  Rosa  Lee  XeUoii,  and 
the  testimony  by  the  prosecuting  witness  was  tlial  her  name* 
was  Rosa  I>ee  Ann,  and  there  is  no  testimony  on  piirt  of  the 
Slate,  showing  that  said  prosecuting  witness  was  known  by  the 
name  <if  Rosa  Kee  Nelson,  it  appearing  in  evidence  that  the 
mother  of  said  witness  is  Lydia  CorutluM's." 

This  groni\<l  of  the  motion  was  well  fouude(l.  and  the  court 
erred  in  dcMiying  it  u])on  such  ground.  The  indiclmei.t  al- 
leii'es  that  the  crime  was  committed  u]ion  one  Rosa  Lee  Nelson, 
and  practically  the  only  evidence  as  to  the  mune  of  ilie  person 
assaii'led  and  abused  was  from  sncli  ])erson  hers(<lf,  a<  follows: 
"Q.  What  is  your  mune  {  A.  Rosa  Lee.  Q.  Rosalie  .Nelson  ^ 
A.    Rosa   Ixv  Ann." 

'I'here  was  no  ])roof  tlnit  she  was  known  by  the  surname  of 
"Xelson,"  as  alleged  in  the  indictment.  The  name  of  llie  jier- 
son  assaulted,  as  allegeil  in  the  iiidietuuMit,  was  an  es-^ential 
element  in  the  legal  (iescrii)ti<»n  of  the  offense,  and  the  failure 
to  ])rove  it  as  laiii  is  fatal  to  the  conviction  had.  McFarlatu]  v. 
Shilr.  1.-.+  Tml.  442,  .".0  X.  K.  DlO;  nculiin  v.  DniL  2  Cnx, 
Cr.  Cas.   ;554;   Rrgim   v.  Frost,  Dcarsly's  Crown  (^is.  474; 


s 


ll. 


m 


714 


AMERICAN  CRIMINAL  REPORTS. 


Jackson  v.  State,  55  Wis.  589,  13  N.  W.  448 ;  English  v.  SInlv, 
ao  Tex.  App.  470,  IS  S.  W.  94;  Pcmj  v.  State,  4  Tex.  App. 
500;  Dai'ls  v.  People,  19  111.  74;  Penrod  v.  People,  89  111. 
150;  llensley  v.  Commonwealth,  1  Bush  (Kv.)  11,  89  Am. 
Dec.  004. 

Ilnd  the  proofs  shown  that  the  party  injured  was  known  mid 
called  hy  both  names,  viz.,  'Mlosa  Lee  Nelson,"  ns  allciicd,  and 
"Rosa  Lee  Ann,"  as  |)roved,  or  that  her  name  was  "luisii  Lee 
Ann  Xi'lson,"  the  convietion  eould  have  heen  sustaiiUMl,  ndt- 
withstandinin'  the  faet  that  the  indietment  omitted  tlic  middle 
Christian  name  "Ann."  JJnt  Wause  of  the  failnre  to  pmve 
the  surname  ''Xelson"  as  laid  in  (he  indietnieut,  (lie  pnxil' 
fails  to  sustain  tlie  eharge  as  made  by  such  indietmnit.  Bur- 
ron(/hs  r.  Stale,  17  Fla.  04;{. 

The  jufliiiuent  of  the  eourt  Ixdnw  is  reversed,  and  a  new 
trial  ord(  led :  the  eost-^  td"  this  api)el]atc  proceeding  to  1k'  taxed 
against  tlie  ennnty  of  Marion, 


Note. — Here  Is  an  Interestinp  EnRlish  case: 
REGINA  V.  GOODING. 

1  Carrlngton  &  Marshman  297. 
1841. 

If  there  he  a  (liscrepancy  between  the  Christian  name  of  the  prifinner'.i 
first  wife,  as  laid  in  the  indivtjnent,  and  as  stated  in  the  (oii:/  of 
the  certificate  ichich  is  produced  to  prove  the  first  marriaac  the 
prisoner  must  be  acquitted:   unless  that  discrepancy  can   be  c.r- 
plained,  or,  in  the  absence  of  such  proof,  unless  it  can  he  shewn 
that  the  first  wife  was  knotcn  by  both  names. 
Before  Mr.  .Tnstice  Maule,  Somersetshire  Assizes,  AuRust  IHth,  1S41. 
Jolin  Gooding  was  indicted  for  feloniously  marrying  Ann  Taylor,  his 
first  wife  Ann  Gooding  then  being  alive. 
Ball,  for  the  prosecution. 
Cockhurii.  for  the  prisoner. 

Ball,  for  the  prosecution,  called  a  witness,  the  wife  of  the  sexton  of 
the  parish  of  Bedminster,  who  produced  an  examined  copy  of  the  cer- 
tificate of  the  marriage  of  ,Iohn  and  Sarah  Ann  Gooding. 

The  Court  then  asked  whether  the  prosecutor  were  i)rcpared  to  carry 
the  case  any  farther;  and  receiving  a  reply  in  the  negative,  the  case 
was  stopped,  and 

Maule,  .1.,  said  to  the  jury — It  does  not  follow  that  the  evidence  al- 
ready produced  prevents  the  case  from  being  proved,  for  evidence 
might  perhaps  be  offered  to  explain  the  circumstances  of  this  difference 
In  the  name  of  the  prisoner's  first  wife,  as  she  is  described  in  the  in- 
dictment, and  as  described  In  the  marriage  certificate;  and  even  in  the 


McFARLAND  v.  STATE. 


715 


absence  of  such  evidence  as  that,  proof  might  notwlthstandluj;  !)o  sup- 
plied, that  the  woman  was  known  by  both  namey;  but  ^  the  cciinsel 
for  the  prosecution  Is  not  prepared  with  such  proof,  the  case  must  stop. 
Verdict— Not  guilty. 


I  > 


McFaula.nd  v.  Statk. 

154  Ind.  442— 5G  N.  E.  Uep.  910. 

Decided  April  G,  1900. 

Vaiiiance:  as  to  name  of  injured  pemon. 

The  name  of  the  person  alleged  to  have  been  aasanltod  is  an  essential 
in  a  charge  of  rai)e.     Failure  to  prove  such  name  as  allo^oil  is  fatal. 

Ai)]>c!il  from  Circuit  Court,  HaniilDu  Couiih-;  lion.  John 
F.  Kfal,  Judge. 

Till  ^IcFarland,  convicted  of  rape,  a]ipcals.     Reversed. 

Stuart  (.('•  lieagan  for  tlic  ap})cllant. 

W'vi.  L.  Tdijior,  Attorney  Clenoral,  Johi  E.  (lurrrr,  I'rose- 
cuting  Attorney,  C.  C.  I  ladle  ij  and  Merrill  Muoirs,  for  tlio 
State. 

Bakei;,  J.  A])pellant  was  convicted  of  rape.  Tlie  affidavit 
and  information  name  J^aura  Van  Buskirlc  as  the  allei;'ed  vic- 
tim. In  tlie  evidence  the  only  name  ]>roven  was  Lillie, — noth- 
injT  uioro.  The  name  was  an  essential  elcuient  in  the  lei>nl 
descripti<in  of  the  offense.  MeLauffhllu  r.  Stale,  r>2  Tnd.  27t» ; 
MvLauiihVni  v.  Stale.  r>2  Tnd.  -tTt! ;  Blach  v.  Stale,  .")7  Tnd. 
100;  Mitrhdl  v.  Stale,  OH  Tnd.  270.  For  failure  of  proof,  the 
judiinient  is  reversed,  with  directions  to  sustain  tlio  motion  for 
a  new  trial. 

NoTK. — We  hero  give  an  English  case  as  follows: 

REGINA  V.  WILLIAM  DAVIS. 
2  Denlson  Crown  Cases,  2:!1— :>  Cox  Criminal  Cases  237. 

1851. 
Coram,  Lord  Campbell  C.  J.,  Alderson  B.,  Piatt  B.,  Coleridge  J.,  Tal- 
fourd  J. 


For  cases  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


ii 


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23  WIST  MAIN  STRHT 

WIISTIR,N.Y.  14SM 

(7I«)S72-4S03 


4^ 


716 


AMERICAN  CRIMINAL  REPORTS. 


In  an  indictment  for  larceny,  the  property  stolen  was  laid  as  belong- 
ing to  Darius  Christopher.  The  prosecutor,  when  called,  said 
that  his  name  was  Trius. 

Held,  that  it  was  entirely  a  questioii  for  the  jury  tchether  the  two 
names  sounded  alike;  and,  therefore,  as  it  had  been  treated  at 
the  trial  as  a  question  of  laiv  for  the  Judge,  the  conviction  icas 
quashed. 

Crown  Case  Reserved. 

Upon  the  trial  for  a  felony  of  William  Davis,  at  the  Quarter  Ses- 
sions, held  at  Dorchester  on  the  31st  of  December,  A.  D.,  1850,  it  ap- 
peared that  the  property  alleged  to  be  stolen  was  stated  in  both  counts 
of  (he  indictment,  (a  copy  of  which  is  hereunto  annexed  as  a  part  of  the 
case)  (a),  to  be  the  property  of  Darius  Christopher.  A  person  of  the 
name  of  dristopher,  the  prosecutor  of  the  charge,  was  called  as  a  wit- 
ness, and  on  being  asked  what  was  his  Christian  name,  said  it  was 
"Trius."  It  was  then  objected  by  the  prisoner's  counsel  that  the  jirop- 
erty  had  been  laid  in  the  wrong  person.  It  was  answered,  that  the  rule 
of  law  as  to  idem  sonans  was  applicable;  and  that  Trius  and  Darius, 
when  pronounced,  sounded  as  the  same  words.  And  of  this  opinion  was 
the  Court,  and  overruled  the  objection.  The  trial  then  proceeded,  and 
the  prisoner  was  found  guilty  on  the  second  count.  The  Court  did  not 
pass  sentence;  but  reserved  the  question  above  mooted  for  the  opinion 
of  this  Court.  The  prisoner  was  discharged  on  recognizance  of  bail 
to  appear  and  receive  judgment  at  the  next  Quarter  Sessions  In  April. 
The  question  for  the  Court  is, — are  the  words  "Trius"  and  "Darius" 
pronounced  so  as  to  produce  the  same  sound?  If  so,  the  conviction  is 
to  stand;  if  not,  the  prisoner  is  to  be  entitled  to  an  acquittal. 

The  following  addition  was  made  to  the  above  case  by  the  chairman 
of  the  Quarter  Sessions: 

This  case  having  been  set  back  (a)  for  the  Chairman  of  Sessions  to 
state  whether  it  was  left  to  the  jury  to  decide  "if  the  two  names  sound 
alike,  so  as  to  designate  the  prosecutor  and  no  one  else,  thereby  dis- 
tinguishing him  from  all  others,  I  beg  to  state,  that  on  my  laying  down 
the  rule  as  to  names  being  idem  sonantia,  and  the  Court  being  of  opin- 
ion that  the  names  Darius  (as  pronounced  in  the  Dorset  dialect  D'riiis) 
and  Trius  sounded  alike,  the  case  i)roceeded,  without  its  being  either 
expressly  or  substantially  left  to  the  jury  to  decide  as  to  the  question 
of  the  names  sounding  alike;  but  the  jury  found  their  verdict  on  the 
facts  of  the  case,  and  the  motion  of  counsel  was  in  arrest  of  judgment!" 

On  Saturday,  2Gth  April,  1851,  this  case  (which  had  been  shortly 
argued  by  Ffookes  on  behalf  of  the  prisoner  on  the  Sth  of  Januanj) 
was  considered  by  the  Judges:  and  the  Court  held  that  the  conviction 
must  be  quashed,  as  the  Chairman  had  not  treated  the  question  re- 
specting the  similarity  of  sound  of  the  two  names  as  a  question  of 
fact  for  the  jury,  but  as  one  of  law  which  it  was  for  him  to  determine; 
and  this  Court  could  not  affirm  as  a  matter  of  law  that  the  two  names 
sounded  alike. 


RATCLIFF  V.  STATE. 


717 


(a)  page  231:  Nothing  turned  upon  the  indictment,  which  was  in 
the  ordinary  form;  the  first  count  was  for  stealing,  the  second,  for 
receiving  etc.,  one  spade  and  one  axe  of  the  goods  and  chattels  of 
Darius  Christopher.     It  has  therefore  been  omitted. 

(a)  page  2;:2:  The  following  minute  was  made  by  the  officer  of  the 
Court:  "Ordered  that  this  case  be  sent  back  to  the  Chairman  of  the 
Sessions,  in  order  that  he  may  state  whether  it  was  left  to  the  jury 
to  decide  if  the  two  names  sound  alike  so  as  to  designate  the  prose- 
cutor and  no  one  else,  thereby  distinguishing  him  from  all  othei-s  If 
It  was  not  expressly  left  to  them,  was  it  substantially  left  to  them 
so  as  practically  to  leave  the  decision  of  it  to  them,  and  not  to  the 
Court,  as  it  always  is  a  question  of  fact  for  the  jury,  and  not  for  the 
Judge." 

SuB-KOTE  (By  J.  F.  G.).-The  above  is  the  report  of  the  case  as  it 
appears  in  2  Denison.  In  5  Cox's  Criminal  Cases  the  name  Tryus  ap- 
pears instead  of  Trius;  also  Dorsetshire  instead  of  Dorchester;  also  the 
following: 

LoHu  CAMi-nELL,  C.  J.— This  conviction  must  be  reversed.  If  it  is 
put  as  a  matter  of  law,  it  is  quite  impossible  for  this  court  to  say  that 
the  two  words  are  idem  sonantia.  The  objection  is  said  to  have  been 
taken  in  arrest  of  judgment;  but  I  never  heard  of  such  a  ground  for 
arresting  judgment  since  the  great  case  of  Stradley  v.  Styles. 

Coi.KuiDCK.  J.— No  doubt  a  Dorsetshire  jury  would  have  thought  the 
words  idem  sonantia. 


Eatcliff  v.  State. 

23  Ind.  App.  64—54  N.  E.  Rep.  814. 

Decided  October  11,  1899. 

Vakiance  as  to  the  viiddle  naine  of  the  injured  person. 

1.  A  variance  between  the  affidavit  or  complaint  and  the  evidence  as 
to  the  middle  name  of  the  injured  party  is  not  fatal. 

Appellate  Court  of  Indiana. 

Appeal  from  the  Circuit  Court,  Fountain  County;  Hon.  J. 
M.  Kabl),  Judge. 

Charles  T.  Eatcliff,  convicted  of  assault  and  battery,  appeals. 
Affirmed. 

C.  M.  McCahe  and  A.  H.  Lindley,  for  the  appellant. 


For  casps  in  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


I 


718 


AMERICAN  CRIMINAL  REPORTS. 


William  L.  Taylor,  Attorney  General,  and  Merrill  Moores, 
for  the  State. 

Black,  J.  On  appeal  from  a  justice  of  the  peace,  the  ap- 
pellant was  convicted  upon  a  charge  of  assault  and  batterv.  In 
the  affidavit  upon  which  the  prosecution  was  based  the  otlFouse 
was  alleged  as  having  been  committed  upon  the  person  of  Wil- 
liam T.  Parker,  while  the  evidence  showed  his  name  to  bo 
William  P.  Parker.  The  claim  advanced  by  counsel  for  the 
appellant,  that  this  was  a  fatal  variance,  cannot  be  sastained. 
The  contrary  view  is  abundantly  established.  Follz  i.  iSlafr, 
83  Ind.  215;  Choeii  v.  State,  .^)2  Ind.  U7 ;  Gordon  v.  State, 
.59  Ind.  75;  Miller  v.  State,  G9  Ind.  2S4;  O'Connor  v.  State, 
97  Ind.  104;  Aferfjenthelm  v.  State,  107  Ind.  507,  s  X.  E. 
50S ;  7?o.s.s  V.  State,  116  Ind.  495,  19  X.  E.  451.  The  judg- 
ment is  affirmed. 

Note. — For  authorities  at  variance  with  above,  see  note:  7  American 
Criminal  Reports  244;  also:  16  Am.  &  Eng.  Ency.  of  Law,  1st  Ed.  114 
&  115.    This  subject  Is  treated  In  notes  following  Staples  v.  State. 


]\r.vNSFiKi.D  v.  State. 

Texas,  Court  of  Criminal  Appeals— 63  S.  W.  Ren.  630. 

Decided   June   5,    1901. 

Variance  Between  Averments  and  Instructions:     Aggravated  ansault. 

It  Is  error  to  submit  as  a  basis  for  conviction,  a  ground  of  aggrava- 
tion not  alleged  In  the  Information. 

Appeal  frcm  ^Fcdina  County  Court;  Hon.  II.  E.  iraa:^s, 
Judge. 

T.  J.  ^Mansfield,  convicted  of  making  an  aggravated  assault, 
apjieals.     Reversed. 

T'^.  H.  BlocJcer  and  Ed.  De  Montel,  for  the  appellant. 

Jxohert  A.  John,  Assistant  Attorney  General,  for  the  State. 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


PEOPLE  V.  SMITH. 


719 


Davidson,  P.  J.  Appellant  was  convicted  of  an  aggravatod 
Bssanlt,  and  his  pimislunent  assessed  at  a  tine  of  $25.  The 
infonnation  charges  defendant  with  an  aggravated  assault, — 
that  by  cutting  with  a  knife  he  inflicted  serious  bodily  injury 
upon  Fritz  J.  Leinwebcr.  The  court's  charge  authorized  the 
jury  to  convict  (1)  if  serious  bodily  injury  was  inflicted;  (2) 
if  the  assault  was  made  with  deadly  weapons  under  cii'cuni- 
stances  not  amounting  to  au  intent  to  murder  or  maim;  (3)  if 
committed  Avith  ju'emeditated  design,  and  by  the  use  of  means 
calculated  to  inflict  "great  bodily  injury;  (4)  if  defendant  used 
moi'o  force  in  resisting  an  assault  made  upon  him  than  was 
necessary.  These  matters  were  prom])tly  and  properly  ex- 
cepted to  during  the  trial,  were  presented  to  the  trial  court  on 
motion  for  new  trial,  and  are  here  assigned  as  error.  It  has 
been  always  held  to  be  erroneous  for  the  court  to  submit  as 
a  basis  for  conviction  a  ground  of  aggravation  not  set  out  in 
the  information  or  indictment.  For  authorities,  see  White's 
Ann.  Pen.  Code,  §  1023 ;  Ilemld  v.  State,  37  Tex.  Cr.  App. 
409,  3.5  S.  W.  670;  Jones  v.  State,  02  S.  W.  758,  2  Tex.  Ct. 
Rep.  485.  The  ground  of  aggravation  set  out  in  the  informa- 
tion was  the  infliction  of  serious  bodily  injury  by  cutting  with 
a  knife.  The  State  must  base  the  conviction  alone  upon  this 
charge. 

The  judgment  is  reversed,  and  the  cause  remanded. 


I 


Pkople  v.  Smith. 


136  Cal.  207—68  Pac.  Rep.  702. 
Decided  April   4,    i,  j2. 

Vahianck — Tnformation  Ciiargixg  Bi-rolary:  Sufficiency  of  the  infor- 
mation—Variance, that  renders  the  verdict  void;  and  entitles 
the  accxised  to  be  discharged. 

In  an  information  charging  burglary  it  is  not  necessary  to  aver 
whether  the  act  was  done  In  the  day  time,  or  in  the  night  time; 
but  If  the  charge  is,  that  It  was  committed  in  the  night  time,  a 


For  cases  In  previous  volumes  on  any  subject,  see  Table  of  Topics  in 
this  volume. 


.  ill 


720  AMERICAN  CRIMINAL  REPORTS. 

verdict  finding  the  accused  guilty  of  burglary  in  the  day  time  is 
void;  and  in  such  case  the  accused  is  entitled  to  be  discharged. 

Supreme  Court  of  California.     Department  2. 
Appeiil   from   Superior  Court,   Yolo  County;   Hon.   E.   E. 
Gadtlis,  rliulge. 

Ered  Smith,  convicted  of  bur^.lary,  appeals.    Reversed. 

W.  A.  Anderson  and  //.  L.  Huston,  for  the  appellant. 

Tircy  L.  Ford,  Attorney  General,  E.  R.  Bush,  District  At- 
torney, and  George  K.  Ford,  for  respondent. 

ITknsiiaw,  J.  The  defendant  was  charged  in  the  informa- 
tion with  having  conunitted  a  burglary  in  the  nighttime.  Tlie 
jury  returned  a  verdict  linding  the  defendant  guilty  of  burglary 
in  the  second  dcgro(>,  which  necessarily  implies  an  entry  /;; 
the  daijtItiH'.  Ju<lgment  u])on  the  delVndant  was  pronounced 
in  accordance  with  this  verdict,  and  he  a])peals. 

The  defendant  was  convicted  <if  a  crime  no^t  embraced  wilh- 
in  the  information.  The  verdict,  therefore,  is  a  nullity,  the 
judgment  upon  which  it  is  based  cannot  stand,  and  defendant 
must  h(>  discharged  from  prosecution  for  the  crime  allegeil  in 
the  infornuition.  {People  v.  Arnett,  129  Cal.  300,  Gl  Tac. 
930.) 

It  is  unnecessary,  under  our  system,  to  charge  the  tijue  of 
he  commissitm  of  the  burglary.  It  is  enough  to  charge,  with 
proper  sjH'filications  of  venue  and  entry,  that  the  det'endant 
committed  burglary;  and  it  fhr-n  may  be  left  to  the  jury,  luidcr 
the  evidence,  to  fix  thji  time  of  day  of  the  commission  of  the 
offense.  The  charge  of  buriilarv  ueces-jarilv  contains  within  it 
the  two  degrees, — burglary  committed  in  the  nighttime  and 
burglary  committed  in  the  daytime.  This  is  not  only  the 
obviously  ])ro])er  mode  in  which  to  plead  the  crime,  but  it  has 
been  so  declared  in  People  v.  Bandinrt,  59  Cal.  HSl,  and  it  i^, 
therefore,  a  matter  of  some  surpnse  that  a  -pleader  should  ex 
industria  de])art  from  this  simple  form,  lint  when,  as  in  thir, 
ease,  ho  sees  fit  to  do  so,  and  charges  specifically  either  a 
burglary  in  the  nighttime  or  a  b'.rglary  in  the  day  ime,  lie 
must  prove  the  particular  offense  charged,  or  the  prosecution 
must  fail,  for  no  reason  can  be  sho\m  to  make  it  appear  that 
a  charge  of  burglary  in  the  nighttime  will  support  a  conviction 


> 


PEOPLE  V.  SMITH. 


r2i 


(liUlt 


line  of 
with 
niliiiit 
innlcv 
.f  tlio 
liiu  it 
»   null 
y   tlic 
it  lia-< 
it  In 
lid  r.r 

11      tlllM 

lior   i\ 

10,    liC 

nlioii 

T  that 

iction 


of  burglary  in  the  daytinio,  nny  more  tliiin  will  a  cliarcp  of 
burglary  in  the  daytinio  support  a  conviccitiu  of  burglary  coim- 
inittod  in  tlio  niglittinio.     .N'oitlior  one  of  tlio^o  siiccilie  oi'lciiscs 
made  spociHe  by  tlio  liour  of  its  coniniis^iou,  cnu  bo  said  to  lie 


o  convh- 


containod   in   tlio  other.     The  roascmino'  iippHcahle 
tioiKs  under  indietuieuts  in  murder  ca-'!  s  is  not  at  all  in  iioiiit. 
The  presenee  or  abscMico  of  nialieo,  deliberation,  and  prcinodi- 
tation  there  lixes  the  degree  of  the  erime,  while  here  the  decree 


is  hxeil   bv  the  hour  of  its  eoinniissii 


m. 


The  li; 


ravitv  of  tin 


])unisbnient  is  no  element  in  detenniniiig  whether  the  ossentials 
of  one  erime  are  enibraeed  within  another  eliarge.  It  wouh! 
b.'  eomiiotent,  for  instanee,  for  the  Legislature  to  punish  bur- 
glary eommitted  in  the  dnytinu^  niiire  severely  than  iiurii'Iarv 
e  mniitted  in  the  nighttime,  when,  aeeording  to  respondent's 
contention,  the  argunu'iit  eniild  be  made  that  a  eharuc  of  burg- 
lary eommitted  in  the  daytime  would  support  a  eonvietion  for  a 
burglary  committed  in  the  iiii;hliiiiie. 

The  pleader,  having  elected  to  charge  the  specific  ofFcnso  of 
burglary  in  the  nighttiiiKN  must  fail  if  his  proofs  are  inadeouate 
to  establish  that  oll'ense;  and  this  arisen,  first,  as  a  ju-iiiciple  of 
jileading.     As  is  said  in  Pcnplc  r.  Jeffcrsoi,  ">:,'  Cal.  452:     "It 
woidd  be  illogical,  and  not  in  accord  with  the  elementary  i>rln- 
cij)le8  of  ])leading,  to  deel.ire  that,  if  the   indictment  charged 
an  entry   in   the,  nighttiii!(>  o:ily.   the  jury  ov  ctuirt  could  Jind 
the  derondant  guilty  of  an  e!ili-y  in- the  daytime."     But  more 
ini]iortant  than  the  pleading  is  the  effect  of  the  pleading  upon 
ihe  rights  of  tlie  defendant,  wiio,  upon  his  trial,  is  ])nt  to  his 
proof  only  to  meet  the  charge  ]n'eferrod  against  him.     Under 
<neh   an    inforiiiaiion  he   is  called  upon  to  comb.at  the  charge 
that  he  feloniously  and  burglariously  entered  a  certain  house  in 
the  nighttime.      Tie  miaht  be  able  to  do  tliis  with  the  utmost 
success  by  proving  an  alihi.  and  yet  would  be  o])en  to  coiiviclion 
for  the  coiiimis>ion  of  a  d.iylight  burglary, — a  charge  which 
he  had  never  boon  forewarnofior  advised  that  he  would  b(^  called 
upon  to  meet.     Tn  other  St  'I"-,  under  similar  statutes,  the  doc- 
trines of  th(>  courts  are  uniform.     Tn  Gin/iics  v.  Sinfc,  2;")  Tex. 
A])]),  ns  j,  8  S.  W.  (to,,  the  indictment  clnriied  a  burglary  in  the 
nighttime,   and   the  judge   inslructed   that  they  might  convict 
if  the  evidence  showed  the  connin-ssion  of  a  burglary  either  in 
the  daytinio  or   nighttime.      The  jud'.nnout  Avas  reversed,   tlio 
court  defdariiK'r  it  to  k'  error  to  o'jve  such  instruction,  "as  under 

^f        Vol.  XIII— 40 


ih 


722 


AMERICAN  CRIMINAL  REPORTS. 


the  indictment  the  conviction  could  oTily  bo  had  for  a  huro.l.ii.v 
conniiitted  in  tlio  niglittime."    To  like  cifcct  are  male  v  llvir 
n   Kan.  402;  WiUiatiu^  v.  State,  4G  Ga.  212;  State  v     I/,,' 
ondv,\  :a)  :Mo.  1,31;  Carr  c.  State.  19  Tox.  Apj).  (535    .03^  \,u 
Kop.  3!).'',;  Bravo  v.  State,  20  Tex.  App.   1S8;  Com.  v  W 
Lauf/hl!„.  11  rush.  .''.98. 

Tlic  jud^iiK'ut  appealed  from  is  reversed. 

]McFAULAAi>,  J,  J  Templk,  J,,  coucurred. 


INDEX. 


References  are  to  pages. 
ADMISSIONS— 

of  del'endant,  no  evidence  of  guilt 392 

See  also:  Evidk.nck  aad  Co.Nsi'iiiAcv. 
ADULT  MALE   PERSON— 

is  one  21  year.s  of  age;  and  that  defendant  is  such,  must  in 

some  way  be  proved j^gg 

ARGUMENT  OF  COUNSEL— 

prejudicial   remarks   of   prosecuting  attorneys 533,  C15 

commentb   on   the   use  of  coarse  and  scurrilous  language  by 

them — notes    (;i7 

see   also '.!!!!!!!'.'.".!  300 

sofi  further,  for  iniproi)er  conduct    and   methods   of   prosecut- 
ing altcrneys,  under  head  of  Thial. 
ARRAIGNMENT.      See    Pkactici;. 
ARliESTS— 

manner   of   making 27 

gt;ueral   iiula  on 15-36 

the  person  should  be  informed  of  the  cause  of  his  arrest 1,  39 

note     27 

policeman's  uniform,  notice  of  authority 47 

knowing  official  cliaractcr  of  sheriff  may  he  notice 51 

may    be  justified  under  void  ordinance,  when  made  in  good 

faith    7 

contra — notes     11,  13 

prisoner   should    be   taken   before   a   magistrate   without   un- 
necessary   delay — notes ^ 31,  32 

delay  may  vitiate  arrest — .Tudge  Tuley's  decision 34 

as  to  arrests  under  void  statutes  and  ordinances 7,  13 

a  lawful  attempt  to  arrest  is  not  a  "provocation" 51 

raids  by  policemen — Chicago  methods — Judge  McAllister's  de- 
cision—ho/cs-    27,  28,  31 

Idlling  by  special  policeman  in  arresting  for  misdemeanor....  325 

ARRESTS  WITHOUT  WARRANT— 

only  perniis3il)le  in  cases  of  felony  and  dangerous  wounding; 

or  breaches  of  the  peace  in  view 7 

in    misdemeanors,    only  when    public    security    demands    im- 
mediate action    7,  13 

votes     11,  21 

general   doctrine — notes    15-3G 

for  bre:)ch  of  the  peace  in  presence  of  an  officer 21 

such  right  may  be  lost  by  unreasonable  delay  23,  24 

In  felony,  only  when  there  are  reasonable  grounds  for  believ- 
ing the  party  is  guilty  of  felony 3G,  51 

rights  of  ])olicemen  to  arrest  in  the  night  time 47 

rights  of  officer  in  re-arresting  an  escaped  prisoner 51 

rights  of  superintendent  of  convict  farm  as  to  escaped  prisoner    39 
oliicers  may  use  reasonable  force,  etc.,  against  danger  to  them- 

prisoner  should  he  taken  Immediately  before  a  magistrate  and 
accusation  in  writing  under  oath  made  against  him— notes    31 

723 


724 


AMERICAN  CRIMIXAL  REFORTrf. 


References  are  to  p.is;os  ■ 

ARRESTS   WITHOUT   WARRANT    (continueil)  — 

wlien  resistance  may  be  niiide  1   oq 

aneKts,  as  viewed  by   Bliickstone ',    '  jy 

arresis,  as  viewed  by  Colte .10,  li.l 

arrests,  as  viewed   by   Hale '  j^Y 

IVIit'higan    doctrine — notes \\    2i 

Minnesota   doctrine — notes    '\',i 

Illinois   doctrine — notes    [     <>i 

Vermont  doctrine    ]  [     r,£ 

Kentucicy  doctrine   7^ 

(lecjrgla  doct rlne    j    47 

Georgia— no  riglit  for  theft  of  less  than  $5ll.(i(i '     1 

docti'ine  of  "liuo  and   Cry" ;>5 

modification    of   lilackstone's   rule — notes 20 

ARRP^ST  I'.Y   PRIVATE   PERSON— 

fur  mis'le-neanors  conimltlod  iu  hi;f  i)rescnce .").  ;u;,  :!;),  c!17 

must  make  h.is  lairpose  known — mast  proceed  in  a  peai  ealile 
manner — not  jn.slilicd  in  ahnoting  one  i;iiilt>-  of  ;i  misile- 
meanor,  who  runs  away  from  him — miii-t  show  necessity  for 

arrest     1 

for  felony,  incumbent  on  the  perscn  making  the  arrest  to  yhow 

that  a  felony  had  been  committed   4;; 

defendant  has  the  right  to  in(iuiro  into  the  conduct  and  mo- 
tives of  th'.'  lierson  arresting  him  without  a  warrant oG 

ARSON.    See  TiiiAi,.  GUO 

ASSAULTS— 

for  definitions,  distinctions  and  essentials  of,  and  of  asr-saults 

and  b.itleries;  see  notes  TO-SO 

also  definition    142 

included  in  charge  of  with  intent  to  kill Vj\ 

threats,  words  or  proijareduess,  without  some  physical  effort, 

not   assault    77 

liointing  a  jiistol  within  Bhooling  distance  is Sf! 

simply  making  signs  of  kissii!,:v,  i.-;  not 90 

docs  not  do|)end  on  accuracy  of  aim 92 

nor  upon  intent  to  do  bodily  harm SC 

on  a  charge  of  assault  to  rape,  may  be  convicted  of  simple  as- 

.sault    1  n:l 

moderate  correction  of  child  by  parent  is  not \^'^ 

same,  as  to  scholar  and  te;u-'ier   Ill 

whii)ping  a  convict  by  a  gu.ard  may  he la'i 

same  b>'  a  superintendent  of  a  workhouse laT 

using  moderate  force  against  a  trespasser,  is  not  a  provoealion 

to     117 

to  reasonably  resist  arrest  by  one  who  is  neither  de  jure  nor  de 

ja<t<>  an  officer,  is  not 11*^ 

question  of  resistance  of  offlcer,  maldng  arrest I2G 

upon   officer.      See    Sia.F-iiKi  knsio 129 

malicious  assault.     See  l^•^■.TI;^■(■■l•Io.^■s 127 

"dangerous  assault"  upon  a  mere  trespasser  may  be  resisted  by 

him     !•'■>'' 

Aggravated  a.^sauJts — question  arises  in  following  cases..  104,  111, 

140,  148,  152,  lo.i,  192 

see  also   V  \r.T.\  nte (i9:!,  7 1  ^ 

"considerable  ))rovccation"  1 1"" 

Assault   and    battery 101,  lOfi,  123,  211,  717 

should  not  be  convicted  of,  where  no   averments   clearly 
charging   it    ^^^ 


INDEX. 


726 


Rofrrcncoa  arc  to  pnges. 

ASKAITLTS  WITH  TNTEXT— 

uiriciH  in  wlilch  It  was  an  iiiKrcdieni.  .itu,  9:5,  im    103  104  m   103 
127.  129.  1:J1,  135,  137,  140.  1  H.  14S.  ir,2.  lii.-,,'ir,(i,'l(;7,"  170.' 1S4,' 

ISO,  ]S!t,  194,  190,  201,  211,  G94,  707 

Bii(I<lon   brawl    ]27 

(.IKHiflv  iiiloil  artuatod  by  mallco !.!!!.!!!!!  135 

W'li'  oil  (iiuiic 132 

1h  an  CHHciilhil  iiiKieiliPUt   [[       131 

n|)|>rovo(l   lii.sh'U(;fkiM  on   In   tiotc \\      i;j5 

fciins   of   liiHtrnctlona    in — Ho^;s■ .9S-101 

t\u'  Intent  and  act,  of  ac{iise<l,  and  not  the  belief  of  the  assailed, 

dclci mines  Kuilt  and  its  dci^rt'e   .'  m 

assault  to  rape—may  convlrt  of  simple  assault 103 

improper  enndnet  without  efforts  to  ravish,  Is  not  an  assault 

with   intent  to  ra|ie ]7() 

to   malm 156 

to  rob.     Seo  Vaimanci; 707 

as  to  pleading  same.    See  l.MutTiiii.NT. 
BLACKSTONE— 

on    a  rrestH    19 

on  assaults    79 

nUUG^AUY.     See  Vaiiia.nck CS2,  G9S.  719 

CAU""— a  poem  473 

CAItRYFNO  V;EAPO?nS.     Gee  Wk.uons. 
CHARACTER— 

the   repntiition   of  deceased   for   si)eciiil   traits  of,  that  would 
rendei-  him  a  treacherous  and  dangerous  man,  may  be  shown  3S5 
CHILD— 

defense    of    144 

COMPLAINT— 

u  commitment  at  preliminary  hearing  disposes  of  defects  in..  420 
CONFESSIONS— 

voluntary,    jidmisslble    458 

notes  on   461 

Incompetpnt  confession  a(lnilssll)!e  I's  inipeachiiig  evidence...  410 

coiilra — note     413 

CONSPIRVrV— 

admlssi,  .is  of  unknown  persons  net  Identified  as  members  of, 
inadmissible;  and  admissions  of  alleijed  conspirators  not  ad- 
missible until  a  conspiracy  has  been  shown 464 

against  evidence  of  violent  actions  and  speeches  at  an  assem- 
l)lago,  It  was  error  net  to  allow  the  defense  to  show,  what 
else   was  said,  and   what  resolutions  wore  adopted  thereat, 

all  being  iiart  cf  the  /ts  (/cstne 464 

to  be  admissible,  declarations  of  co-consjdrators  must  be  res 
ncstac,  and  it  must  be  shown  that  defendant  was  a  party  to 
the  designs  of  such  conspirators.     See  also  Ixstuuctio.ns.  .  533 

CONSTITUTIONAL  LAW— 

arrests  juslKled  under  void  ordinances,  until  tliey  are  declared 

unconstitutional    7 

contra,  in  nates,  and  difflculties  in  reconciling  decisions 11 

habeas  eorpus  will  lie  to  release  in  such  cases 218 

COUNSEL— 

error  to  instruct,  that  statements  of  defendant's  counsel  may 

be  considered  as  admissions  443 

See  also:     AubUiJEAT  oi-  Coinsfi,.  and  Trial. 


J2G 


AMEniCAX  Ciil.MIXAL  IlEPOUTa 


III  foiMic  .1  arc  tc   pages. 
DEADLY  WEAPON'S.    See  Wkaions. 
DECLARATIONS.     Sco  Ui:,s  Okstak. 
DYL\«  DI3CLAUATI0.\S~ 

niiide  several  wcekH  liei'ore  deatli  niny  ho  rorolved,  when  clear- 
ly iiiMde  under  aiiprtdieiiKloa  ol"  liuiiuiullng  (luiil'h ;{47 

See  also:     Uks  (ii:si.vk. 

L.\RL  01'  CHATHAM— 

on  the  riglii  of  llie  citizen  to  protect  his  homo isi 

EAST— 

on  the  l;i\v  of  nssuult  and  asaimlt  and  battery. . . .«. sa 

ELECTION— by  prosecution.    See  Tuiai,. 
ELLEXnOROUGH— 

Is  he  niiwiuoled  as  to  his  Kii))l)osed  iiilin;;  in  Fro.'it  v.  IIuUo- 

waijf    ^ctt's,  reviewing  tluit  and  other  cases ,utJ7-374 

EVIDEXCE— 

u  witness'  (•redil)ility  may  be  tested  by  experimental  tests  as 
to  his  own  ability  to  see  and  hear,  made  in  areordance  with 
shown    facts    2 10 

defendant  charged  with  Killing  a  nirl  who  had  rejected  him; 
his  letter  written  before  the  homicide  but  after  the  rejec- 
tion, was  i)art  of  the  rev  iicstae 255 

a  defendant  not  on  trial  himself  ia  a  competent  witness  anainst 
liis  ( n-(k'feiidants i;,")? 

littlni?  defendant's  sl'oes  in  certain  tracks.  Is  not  compell- 
ing liini  to  testify  aK:!lnHt  himself L'"7 

evldenco  of  self-servinj?  acts,  inadmissible 278 

defendant  in  a  condict  with  his  f.ither  as  a  result  nf  the 
father's  allef^cd  mistreatment  of  liis  wife,  killed  him  in  al- 
leged scif-defease:  Error  to  admit  statements  of  defmulant's 
molher  not  r.ia:le  in  his  hearing,  that  the  fatiier  ouglit  to  be 
killed,  and  tliat  she  would  have  him  killed 281 

statements  by  third  person  in  absence  of  defendant  that  they 
were  going  to  get  deceased  for  his  assault  upon  defendant, 
inadmissible     2S6 

where  there  was  evidence  that  deceased  had  assaulted  defend- 
ant and  his  brotiiei',  and  tliat  defendant  drew  a  i)ocket  knife 
just  prior  to  tiie  wounding,  it  v.as  competent  for  defendant 
to  testify  tliat,  at  the  time,  deceased  was  eyeing  them,  and 
advancing,  as  he  thought,  to  jumi)  on  them;  and  the  declara- 
tion cf  the  brother  at  the  time  v/as  part  of  the  ra  iicstac. .   294 

against  defendant's  alleged  declaration,  tl^at  if  deceased  both- 
ered him,  he  would  hurt  him,  it  was  competent  for  defendant 
to  show  the  threatening  actions  of  deceised  for  a  year  pricr 
to  the  affray,  and  that  defendant  had  offered  to  forget  all  dif- 
ferences, and  become   friendly 234 

it  was  competent  for  defendant  to  iiiiiie.ich  a  witness  for  the 
state,  by  proving  bis  statement  made  a  day  after  the  homi- 
cide, that  he  was  bidiind  the  depot  at  the  time,  and  did  net 
see  or  hear  the  fight 234 

It  was  error  to  impeach  a  female  witness  for  defendant  by  pro- 
ducing her  alleged  immaterial  and  irrelevant  statement,  that 
as  soon  as  she  heird  the  voices,  she  knew  there  would  be 
trouble,  and  advised  defendant  net  to  get  into  it,  and  also  er- 
ror to  admit  the  opinionative  statement  of  another  witness 
for  defendant,  that  defendant  had  a  bad  case  and  that  it 
might  go  hard  with  him  294 


INDEX. 


m 


RotercDccs  are  to  pagci, 

EVIDENCE   (continued)  — 

for  iiurpoHos  of  InipoaohinK  a  wltncsH,  docliiratlona  of  dcfoml- 
ant  are  not  linilldd  to  prercqulsilcs  as  to  time  and  iilaco 300 

error  to  admit  tcwtluioriy  that  dfrciidaut  liad  owe  threatened 
to  kill  some  unv;  and  that  he  jsald  he  had  already  killed 
three  men  300 

and  It  is  unwarranted  practice,  I'or  iirosecutinK  atlnnievb' to 
testify  that  one  of  their  witnesses  had  told  tliom  that  defend- 
ant had  admitted  his  Rulit  to  him,  the  witness  havlnf  de- 
nied  that  such   was  tlie   fact 300 

and  ihe  question  considered,  liow  f;ir  such  prejudicial  error 
might  be  neutrall/ed  Ijy  the  coiufs  action 300 

witnesses  should  not  be  Impeached  as  to  immaterial  statements 
made  to  prosecuting  attorneys 420 

a  witness  for  defendant  having  denied  that  defendant  nade 
guilty  admissions  to  him,  it  was  error  to  admit  evidence  hat 
he  had  stated  sricli  to  lje  the  fad 404 

where  tiio  overt  act  was  by  another,  to  convict  d:'renduit,  it 
must  1)0  slicwn,  art  only  th;U  ho  w.va  present  !'"(l  knew  cf 
the  offense,  'uit  that  he  participitod  theieln noo 

note,  on  examining  dei'^jadant  w\  inciilpatcry  matters oil? 

declaratlcns  of  defea(i::i)t  duriag  'li;;lit,  admissible DTt 

error  to  usk  defendant  If  he  con;5orleil  wltli  criminals  during 
flight     374 

defend:mt  not  prejudiced  by  not  being  allowed  to  cross-exam- 
ine a  witness  for  the  state,  not  called  by  It. 37 1 

error  to  admit  evlilonce  of  defendant's  actions  net  connected 
with  the  oftense  on  trial,  but  which  may  arouse  prejudice 
and  enmity  against  him   ?,Sd 

opinion  cf  wltne.-s  as  to  the  necessity  of  either  running  or 
fighting"    inudnilssll)lc    3S9 

sllome  of  accused  during  trial  no  evidence  of  guilt 3i.'2 

neither  affldavlts  or  depositions  ci.n  Ije  received  against  the 
accused    392 

not  admissible,  to  show  abuse  of  deceased  by  defendant  long 
before  the   homicide,   but  not  directly  connected   with  it. .  404 

error  to  admit  evidence,  that  in  the  ni.ght  time,  four  days 
prior  to  the  honii'ide  some  unknown  person  had  knocked 
on  the  side  of  deceased's  house 410 

testimony  that  certain  tracks  indicated  walking,  and  running, 
at    different    places,    is    not    oi)inionalivo 410 

where  the  evidence  and  the  opinions  of  experts  are  conflict- 
ing, the  issues  should  be  left,  to  the  jury 420 

defendant  should  be  allowed  to  cross-examine  the  state's 
witnesses  as  to  any  fact  that  might  explain  why  he  had  a 
gun  at  time  of   homicide 4  !3 

error  for  prosecutlcu  to  show  custom  among  railroad  haiuls  to 
pitch    Imives,    etc •  •  1''5 

while  defendant  by  becotr.ing  a  witnesr,  subjects  himself  to 
rigid  cross-examination  he  does  not  waive  his  ccnstitu- 
tional  rights,  and  should  not  be  asked  incriminating  ques- 
tions as  to  particular  acts  not  connected  with  the  issue  on 
trial    "23 

error  to  admit  evidence  cf  young  men  as  to  time  thev  made 
traveling  a  certain  distance,  when  defendant  was  70  years 
old  and  sickly 630 

vague  evidence  of  seeing  some  one  about  the  si7,e  of  defendant 
going  toward  the  locus  in  quo,  wholly  falls  to  identify....  G30 


728 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pages, 
EXCEPTIONS— 

not   necessary,   where   defendant's   constitutional   rights   have 
been  Ignored  by  tlio  court  below,  especially  so   where  the 
interests  of  defendant  niight  be  prejudiced  before  the  jury 
by   having   his   counsel   i)laced   in   a   position    of   apparent 

antagonism   towards   the  court (;.i7 

not   necessary  to  except  at  the  time  to  instructions,  nor  to 
point  out  their  defects:  It  is  the  duty  of  the  court  to  instruct 
in  accordance  with  the  law,  without  being  requested  so  to  do  41G 
FLIGHT— 

unexplained,   evidence  of  guilt r,\ 

defendant  may  explain  his  reasons  for  flight 140 

FORCE— 

error  to  instruct,  that  the  force  used  by  defendant  was  exces- 
sive       17s 

FOSTER.  SIR  MICHAEL— 

en  duty  of  jailers ;;5 

on    self-defense L'Imi-2;k> 

his    Crown    Law 2!to 

GRADES  OF  OFFENCES— 

general    notes OG-lDl 

three  English  cases,  in  notes 4;j,j,  4;!(;,  4:57 

grades  in  homicide 2TS 

asRiuilt  and  battery  includes  assault — Hawkins'  views sO 

same — East's    views 82 

assault  with  intent  to  kill,  includes  assault 93,  15C,  194 

a?;gravated    assault,    includes   assault Vlii 

indictment  for  manslaughter,  or  for  assault  witli  intent,  will 
not  sustain  a  verdict  for  assault  and  batter.\,  unless  a  b;'.t- 

tery   is  charged 101,   4;!2 

the  indictment  should   aver  the  character  and  extent  of  the 

injury,  so  as  to  Khow  the  gi'ade 1S6 

the  court  should  instruct  the  jury  as  to  the  various  grades. , . .     Oil 
same — independent     of     defendant's     contention — nothing     is 

waived    4oX 

same — sec    votes 97 

when  the  court  should  instruct  on  aggravated  assault 140 

tile  court  may  reject  the  higher,  and  submit  the  case  on  lower 

grade     1 ":! 

where  a  general  verdict  might  be  uncertain,  the  verdict  should 

sjiecify  the  grade 144 

fern:;  for  instructions  as  to  grades  of  assault 9.S,  \»\ 

liiihuc  to  give  forms  as  to  lower  grades — when  not  error,...   17:1 

HABEAS  CORPUS— 

to  release  from  illegal   arrest ll! 

same,  under  void  act  of  legislature 21S 

HALE,  SIR  MATTHEW— 

as  to  the  law  of  arrests IT 

biographical  sketch,  and  his  rules  for  judicial  guidance is 

HAWKINS— 

detinitions  of  assault  and  assault  and  battery So 

HUE  &  CRY— 

Sir  Edward  Coke's  version  of  the  law -a 

HOMICIDE-39,  47,  51,  2:i:?,  240.  247.  2.'5r,,  257,  2(12,  2(14,  2r,S,  270,  27C. 

•>78    284     2SC.    294,    :!00,    :!17.   325,  ;?:{0,  :!37,  347.  3.-)7,  374,  3S5,  :is!,. 

392',  39.;,' 399,  402.  404.  410.  414,  416,  418,   420,    425,    429,    432,    4;;S, 

443]  458^  4G2,  4G4,  512,  533. 


INDEX. 


729 


References  are  to  pages. 

HOMICIDE   (continued)  — 

jurisdiction:  indictment  and  triiil  must  be  in  countv  wheio  the 

mortal  injury  was  inflicted " 00.5 

note  on  question  where  injury  in  one  jurisdiction  and  ilcaili  iii  ^"^ 

another    .1.;^. 

place  of  death  not  jurisdictional ">  10 

MUiiDKK  in  2d  degree  and  manslaughter;   distinctions!!!!!!!!  240 
intent   to   Idll,   presumed   from   act,  considered;   and   instruc- 
tions on  this  iip.d  ct.icr  inRrcdients  reviewed 247 

luiiiiKU  in  1st  decree,  where  rejected  suitor  calls  out  girl  aiid 

repeatedly  shoots  her 235 

also,  where  an  uncle  l\v  marriage  was  killed,  because  lie  fore-  " 

closed   a  mortgage o-j 

also,  where  defendi'.nt  ))rcvoked  deceased  into  a  ccnllict  for  the 

Itfirpcse  of  killing  him 202 

in  cases  of  mi;rder  in  1st  degree,  question  of  manylaughter  in 

4th  degree,  is  irrelevant 2C4 

evidence  sustains  murder  in  2d  degree 203 

distinctions  between  murder  in  2d  degree  and  nianshiuphter 

stated    270 

involuntary  manslaughter — defense  of  a  brother 294 

illegal  arrest;   homicide  in 317 

deceased  and  another  claiming  to  be  specii-l  cfflcers,  but  with- 
out any  legal  authority  attempted  to  arre.it  defendant  in  his 
home  for  an  alleged  misdemeanor  of  some  i)riority,  without 
a  warrant;  hrht  that  they  wero  merely  private  jjersons,  and 
had  no  authority  to  make  arrests  for  misdemeanors  net 
committed  in  their  presence  or  within  their  pnrsonal  knowl- 
edge, without  a  warrant 317 

by  a  si)ecial  iioliceman  in  ari-esting  a  disorderly  person;   his 

rights  and  liabilities  considered 325 

unnecessary  killing  by  one  of  an  oflicer's  po.s.ve :!3it 

Georgia   Statutes    on ;'34 

nialtre:itment    of    wound 2T.S 

as  to  assaults  upon  enfeebled  persons,  and  iis  to  wlietlier  death 

resulted  from  tlie  assault  or  the  enfeebled  condition 033 

assassination  of  Goebel,  governor-elect  of  I'Centucky,  and  ques- 
tions of  conspiracy  connected  therewith u;4,  .333 

also  same,  in  case  in  notes 312 

see  also,  Evidk.nci;,  I.Mncr.Mii.NT,  IxsriacrioNs,  StLi -dli lm  1;.  Thi.\l, 
etc. 

IDEM  SONANS— 

Cee  Mik.\omi;k  and  VARLWcn:. 

INDICTMENT  AND  INFORMATION— 

must  aver  tlie  date  of  the  offense 191 

averring  blow  in  one  State  and  death  in  -inother,  is  good  in  tlie 
latter     240 

note   on    question 238 

not  duplicitous,  because  it  charges  assault,  and  also  assault 
with   intent   211 

the  words  "wilfully  killed"  do  net  of  themselves  imply  that  the 
homicide  was  murder;  they  are  not  the  equivalent  of  'with 
a  design  to  effect  dentli" 240 

an  indictment  is  not  made  vicious,  because  it  merely  particu- 
larizes more  than  the  law  requires 300 

not  rendered  void  because  it  charges  several  persons  and  each 
of  them,  v.ith  homicide ^^'^ 


I    ■ 


730 


AMERICAN  CRIMINAL  REPORTS. 


Rcterenccs  are  to  pagOR. 

INDICTMENT  AND   INFORMATION    (continued)  — 

in  assault  to  murder,  must  charge  the  assault  to  have  been 
felonious    1S9 

under  statutes  to  punish  assaults  with  intent,  etc.,  must  aver 
the  intent,  etc. — must  not  be  left  to  inference 19G-199,  201 

assault  with  intent  to  inllict  bodily  injury,  included  in  charge 
of  assault  to  kill 93 

permissible  to  charge  various  phases  of  aggravated  assault  in 
one  count 192,  211 

one  charging  that  several  persons  committed  a  murder  Is  good, 
although  it  alleges  that  the  particular  person  who  did  the 

shooting   is   unlinown 533 

INFANT— 

presumed  to  be  incapable  of  crime 556 

INSANITY— 

witnesses  of  several  years  intimate  acquaintanceship,  may  be 
compe'.ent  to  give  opinions  as  to  sanity 443 

error  to  instruct  that  insanity  should  be  established  by  a  i)re- 
ponderance  of  evidence,  and  that  defendant  is  not  entitled  to 
a  reasonable  doubt  on  such  issue 443 

"burden  of  proof"  in  insanity,  see 454,  455 

INSTRTTTIONS— 

must  be  founded  on  the  evidence Uo,  152 

must  be  consistent  with  the  evidence;  must  not  omit  material 
ingredients;  must  not  contain  arbitrary  assumptions  against 
defendant    418 

erroneous  to  assume  malice  from  the  mere  use  of  deadly 
weapon     404 

tlie  same,  that  use  of  same,  pre.sunies  malice  sufficient  to  con- 
stitute murder,  and  reriuires  defendant  to  justify,  etc 402 

the  same,  that  shooting  at  one  raises  a  conclusive  presumption 
of  intent  to  lull C74 

the  same,  to  assume  that  defendant  was  in  a  conspiracy i)53 

the  same,  to  assume  that  certain  persons  were  officers 402 

might  be  plain  to  lawyers,  yet  misleadiag  to  jurors IGli,  1C4 

the  court  should  correctly  instruct  on  the  law  without  being 
refjucsted,  and  a  failure  to  do  so  is  reviewable  without  excep- 
tions at  the  time 416 

Instructions  to  which  exieptions  were  not  talcen  in  the  trial 
court,   will   not   be  reviewed   on   appeal 300 

should  give  only  law  applicable  to  the  case;  should  not  charge 
as  to  reckless  conduct  and  abandoned  heart,  in  a  case  cf 
specific    combat 309 

should  fully  cover  the  circumst:inces,  so  that  the  jury  may 
intelligently  determine  the  conditions  surrounding  defend- 
ant    "-' 

prosecutors  should  not  draft  so  as  to  pare  av>'ay  defendant's 
rights    "9G 

prcse.  utcrs  shcukl  net  over-in3truft;  it  leads  to  error;  and 
defendants  should  not  be  charged  into  the  peaitentiary, 
as  a  matter  of  law,  but  sent  there  upon  findings  of  guilt 
upon     facts 41S 

error  to  instruct  in  absence  cf  defendant (<1S 

sufficient  to  instruct,  that  the  jury  has  the  right  to  deter- 
mine tlie  law  and  the  facts;  net  error  to  omit  telling  them, 
that  they  may  disregard  the  instructions  and  the  law 1270 

should  net  Instruct  on  law  of  principal  a-vi  accessory,  when 
that  question  was  not  raised  by  the  evidence 0o2 


INDEX. 


731 


References  are  to  pages. 
INSTRUCTIONS    (continued)  — 

erroneous,  that  would  leave  the  imprpsslcn,  that  the  testi- 
mony of  one  accomplice  miglit  he  used  to  corroborate  tint 
of     another 

assault  with  intent  to  murder— should  have"  beeii  instvuctions 
on  the  law  of  nianskuishter,  whether  or  not  reque.-toa 

same— case  of  sudden  brawl— on  sudden  heat  and  passion  and 
self-defense    ' 

same— where  there  was  evidence  of  an  assault'  iipon  defendant 
— on   aggravated    assault 

the  words  "in  a  heat  of  pulsion"  in  instruction  for"  the  State, 
should   have  been   defined ' 

force  used— the  words  '•aijparcntl.v  necessary"  shculdliiive  been 
specified  as  applying  to  defendant 

on  reasonable  doubt— should  net  be  limited  to"  part" of  tlie  evi- 
dence, but  should  cover  it  all 

a  clause  on  reaycnnble  doubt,  in  bo'-inning  of  instruction, 
applies  to  all  ingredients  therein,  and  need  not  be  repeated. 

a  general  reference  to  presumplicn  of  innocence  iind  reason- 
able doubt,  given  on  part  of  the  State,  does  not  justify  the 
refusal  to  give  one  tendered  by  defendant,  clearly  covering 
those    points "_ 

on  "provocation,"  should  be  qualified  with  "adequate  or  sufii- 
cient"    

"fears"  of  a  br:'.ve  man,  or  of  a  coward,  etc 

should  have  been  given,  that  testiaiouy  of  a  confessed  per- 
jurer might  be  disregarded,  although  ainied  at  a  particular 
witness     

should  not  limit  defendant's  rights  to  danger  from  deceased 
onl.v,  there  being  others  in  the  affray 

erroneous  regarding  the  authority  of  persons  to  arrest  for 
misdemeanor,    etc 

faulty,  that  a  special  policeman  should  be  convicted,  if  he 
used  more  force  than  was  ncceK.sar.v,  omitting  the  qualifi- 
cation of  "reasonably  and  apparently";  not  cured  by  other 
general     instructions 

defendant  net  entitled  to,  on  vohnifary  imaslaughter,  where 
the  act  was  likely  to  endanger  life,  although  there  was  no 
intention    to   Icill 

was  entitled  to,  that  if  he  reasonalily  believed,  that  deceased, 
■who  was  the  aggressor,  was  abuut  to  Itill  his  brotlier,  or 
Inflict  great  bodily  harm  upon  him,  that  he  had  the  right  to 
use  means  th;it  were  reisenably  and  apparently  necessary  to 
insure  his   brother's  safety 

on  reckless  conduct,  depraved  hc.'.rt,  etc.,  net  applicable,  where 
defendant  shot  ove  of  several  p;>rscas  that  entered  his  house 
at  night,  and  demanded  his  surrender 

in  homicide,  error  to  ignore  "heat  of  passion"  and  "sudden 
provocation,"  and  to  eliminnto  question  of  manslaughter... 

too  xiarrow,  and  ignores  the  circu.r.stances  and  intent,  that  if 
defendant  shot  deceased,  he  should  be  convicted  of  murder, 
unless  the  jury  believed  him  guilty  of  manslaughter 

proper,  that  the  intent  to  kill  and  the  killing,  may  follow  each 
other  as  rapidly  as  successive  impulses  of  the  mind;  but 
error  not  to  clearly  charge  as  to  the  necessary  malice  afore- 
thought      

proper,  that  defendant  should  be  convicted  if  he  shot  deceased, 
cr  if  some  other  defendant  shot  him,  defendant  on  trial 
acting  with  the  other 


5;^3 

131 
127 
110 
27S 
123 
410 
4C4 

653 

270 


399 
317 

325 
294 

294 

4G2 
396 

414 

443 
533 


732 


AMERICAN  CRIMINAL  REPORTS. 


278 
2(Jt 


4:'J 


270 


2SG 

77 
112 
■2'J  I 

mi 


References  are  to  pages. 

INSTRUCTIONS    (continued)— 

on  manslaughter  In  oil  degree  and  self-defense  should  not  be 
Joined    

not  entitled  to,  on  luanshiughter  In  4th  degree,  where  the  evi- 
dence showtd  a  case  of  murder  In  the  1st  degree,  with  verdict 
for  2d  degree 

on  voluntary  manslaughter,  when  verdict  for  murder  might 
have  been  justified,  not  sufBciently  prejudicial  to  avoid  ver- 
dict for  manslaiightor 

on  manslaughter,  not  vitiated  by  the  words  "did  wilfully  kill," 
when  taken  along  with  the  qualifications  given,  they  were 
favorable  to  defendant 

error,  that  if  defendant  with  a  deadly  weaiion  provoked  a 
fight  to  kill,  et'j.,  he  was  guilty  of  murder,  even  though  ho 
shot  in  self-defense,  since  it  annuls  Ids  right  to  that  del'eiiKO, 

which  v;as  clearly  raised  by  the  evidence 

INSTRUCTIONS  APPROVED— 

assault     

assault    v/ith    deadly    weapon 

assault  with  intent  to  murder l.;7,  217,  2G2,  27ii, 

forms  for  assaul'.s  with  intent,  etc lis 

self-defense    IGl,    j(j2, 

JAILERS— 

rights   and    liabilities    of — note 

JEOPARDY— 

acquittal  under  charge  of  murder,  not  a  bar  to  another  jirose- 
cution  for  murder  by  striking  with  a  gun — See  Giiclcl  r. 
P..  i:'.  111.  22G,  given  in  note 

as  applied   to  variance — note 

JUDGE— 

has  no  right  to  ask  leading  questions,  and  slicnld  not  ask  such 
as  would  be  improper  for  counsel 

should  interfeiQ  to  protect  defendants  from  the  designs  of 
prosecutors  to  make  tl'ern  the  victims  of  su.si)icicii 

should  net  r.ddrcss  r(  marks  to,  or  make  coiumcuts  on  the  evi- 
dence of  a  Viitaoss,  in  siuh  way  th:it  tli'^y  -night  bo  con- 
strued ;>s  indcr.semonts  of  his  creilibility ;  and  where  the 
judge  dnes,  defendant  is  not  precluded  from  raising  objec- 
tions  after   verdict 

should  net  mtike  suggestions  or  ask  questions  that  would  indi- 
cate his  opinion  in  a  v.'ay  prejudicial  to  defendant 

of  apiiellato  court,  should  be  proof  ag-.inst  i)opular  clamor, 
passien  and  prejudice,  which  tend  to  subvert  justice  and  dis- 
organi/e     society 

the  appcintment  of  special  judges  to  try  certain  cases;  and  as 
to  the  duty  of  the  judge,  to  vacate  the  beach  in  favor  of  the 
special   judge,   case    in    notes 

JURISDICTION.     See  Homicide  and  Se.ntenci:. 

JURORS— 

in  cai)ital  cases,  conscientious  scruples  against  death  penalty 
Is  ground  for  challenge SI 

are  incompetent,  who  have  formed  definite  and  fixed  opinions 
as  to  guilt,  although  they  answer  that  they  can.  neverthe- 
less, give  p.  fair  trial  and  decide  according  to  the  evidence  ;]47 

thf-'ir  conipetencv  dei)ends  on  the  character,  and  not  the  sources 
of    their    opinions 2*7 


C7S 
G77 


C47 
G;iO 

G40 
G.13 

3;J7 

G12 


INDEX. 


733 


4 


Rerorcnccs  aie  to  pages, 
JURORS  (continueti:  — 

after  original  Dauel  is  exhausted,  it  is  discretlonarv  witi,  fii« 

court  to  fix  the  luunbers  of  new  panels  of  jums  40a 

inaccuracies  hi  exi.laining  questions   to  jurors  0.1  theh-";;;/; 

mere  Irregularlti;; "  in "  summoning '  ju;;;;,'  kiio^n  "to  '  and  'net  ''"'^ 
objected  to  by  d-fendant,  not  ground  for  reversal  -o 

LARCENY.    See  Vakia^nxe-CSG.  CSS,  703  " 

LAW— 

definition    of — sec   notes 

L0TTI5RY  TICKETS—  

Congress  may  Drohibit  the  sending  of  them  from  Et  ilo  to 
^tate,    ))y    indei)endent  carriers...  rn 

Policy  Slips  are  not  Lottery  Tickets. tr,- 

MALICE—  ^-''^ 

cannot  bo  inferred   from  the  use  of  a  do:id!v  ;vcn)on  alone 
as  the  law  justifies,  sometimes,  its  use,  but  must  be  i-athered 
from  all  of  the  circumstances  attending  its  use         ''70    iii"   40 1 
may  be  rebutted  by  showing  particular  aois  of  kiudlluess  on 
part  of  defendant o-, 

MANSLAl'GHTER.     £ce  IIijmk  idi:.  "' 

MISNO.MER— 

plea  of,  that  name  was  "Bickers"  and  not  "Blggors"  held 
not    good ■         '  gp^ 

for  criticism  on  above,  that  the  n:imos  v.i're  mt'i^ic,n  lolians, 
and  that,  that  doctrine  should  not  control  sucii  i)leas  and  for 

decisions   cuntra,  sec  iio'cs '  ^qg 

MONTH- 

means    30    days gQs^ 

MURDER.     Cte  IIo.micidi:. ' 

OFFICERS— 

Taylor  on  receiving  his  certificate  of  election,  became  prima 
facio  governor  of  Kentucky,  l)ut  when  the  legislature  decided 
in  favor  of  GDebel,  he  becanu?  governor,  inul  upon  his  death, 
the  lieutenant  governor  assumed  his  duties;  T.'s  holding 
possession  of  the  oiTicial  premises  did  not  make  him  a  ile 
jure  or  a  de  facto  officer;  aiid  a  pardon  issued  bv  him  was 

void      ; 4(54 

one  not  an  officer,  either  dc  jure  or  dc  facto,  has  no  authority 

to  arrest   1X8 

rights  of  officers  making  arrests,  to  use  reasonable  force 123 

a  city  marshal,  a  peace  officer 120 

PRACTICE— 

clerical  error  in  giving  wrong  terra  number  in  the  sentence, 

does    not   invalidate    it 247 

■where    no    evidence    is    presented,    the    appellate    court   must 

assume  that  the  instructions  were  ai)i)licable  to  the  evidence  2G2 
not  good  practice  to  send  to  the  apiieliate  court  physical  pieces 

of  evidence,  such  as  clothing,  knives,  etc.;    verbal  descrij)- 

tions    sufficient 270 

to  what  extent  irregularities  and  improi)er  evidoiife  prejuiiced 

the  defendant  is  a  question  for  broad  judicial  discrelion 300 

in  ca.ses  involving  libertv,  the  court  will,  on  rehearing  for  the 

first  time,   consider  vital   points  i)revicusly  overlooked 32.1 

defendant  not  having  oijportunity  to  challenge  grand  jurors, 

not  ground  to  set  aside  indictment 325 


734 


AMERICAN  CRIMINAL  REPORTS. 


Roterenccs  are  to  pages. 

PRACTICE   (continued)  — 

the  court  may  reconvene  grand  jury  at  same  term 325 

a  conviction  will  not  be  set  aside  where  the  facts  of  a  former 
conviction  were  revealed  through  cross-oxaniination  by  the 
defense,  and   the  court  admonished   the  jury   to   disregard 

them     357 

attorney  general  cannot  cure  admitted  error  In  instructions 
by  filing  copies  of  other  alleged  offered  instructions  on  behalf 
of  defendant,   which  are   not  authenticated  as  part  of  the 

record     420 

Instructions  of  record  should  not  be  duidlcated  in  the  bill  of 

e.\"eptl«ns     420 

by  admitting  whi;i  nn  absent  material  witness  for  the  defend- 
ant would  testify  to.  prosecuting  attorney  cannot  defeat  de- 

fcudaiit'.s    riglit   to   a    canriiiu;nicc 42r> 

objectlon:ibk'     remarks    by    prosecuting    rttorney    should     be 

excci'ted    to 421) 

too  late  to  ))oll  jury  after  sentence 421) 

u  pardon  rofpiires  no  i)lea  to  introduce  it 4li4 

the  court   takes  judicial   notice  of  who  is  governor,  and   his 

signature    404 

there  must  be  an  arraignment  and  plea S(J 

Judicial   discretion   in   continuances 14,S 

a  motion  to  stril;e  out  evidence  cannot  be  considered  on  appeal 

where  the  record  dees  not  show  the  evidence lii;! 

practice  in  Georgia  on  motions  for  new  trial,  see 47 

PRESUMPTIONS— 

as  to  being  aged,  robust,  etc 192 

as  to  infant's  incai)acity  to  commit  crime 7>7iVt 

notes     on rir)S 

as  to  malice,  see  Mai.u  k. 
PRINCIPAL   AND   ACCEL:30RY 104,   300 

llAIDG— 

by  police  officers 27 

REACONAIiLE   nOUUT- 

an  tc'  V.i'i  'j,-^'^  of  the  words  "competent  evidence,"  and  "or  the 
wfi.  ■      r"    -'.t,  in  instructions  on  reasonable  doubt 458 

RES  'TZ.   ■   • 

st;!t-'  .f-  of  one  heli)Iess  from  mort;;l  wounds,  made  several 
ni' li'         after,  admis.sible  as  part  of  the  res  ijesiao 347 

where  i.i.e  mortally  shot  immediately  told  the  assailant,  "you 
shot  me  to  death,"  and  ran  half  a  block  and  fell  30  seconds 
after,  and  told  a  witness  that  defendant  shot  him,  both 
statements  ai'c  part  of  tii<!  res  (jvstae 357 

a  statement  by  deceased  within  an  hour  after  the  shooting  that 
defendant  shot  him  but  that  he  did  not  intend  to  shoot  him, 
is  part  of  tlse  /ys  tjvstnc 371 

question  considered    374 

RIOT— 

by  officers  attempting  to  execute  a  void  ordinance 12 

ROBUERY— 

See     VAUiAMii: 715 

ROSCOE— 

on  assault  and  assault  and  battery S3-f>4 

RUSSELL— 

on  assault  and  assault  and  battery S0-S2 


\ 


325 

f  a  former 

on  by  the 

disresurd 

ar.7 

istriic'tions 

oil  behalf 

ut  of  the 

420 

he  bill  of 

4L'() 

tie  dofeiid- 
defeat  do- 

42r. 

houhl     be 

4-M 

4-'l) 

4(i4 

,  and   his 

4C4 

S(i 

14,S 

on  appeal 

lo.J 

47 

102 

r.r,(; 

rir>s 

....    104,  300 
27 

1  "or  the 
45S 

a  several 

347 

uit,  "you 
'  seconds 
Im,    both 

357 

tlMK  that 
loot  hlni, 

374 

374 

12 

71u 

S3-S4 

S0-S2 


INDEX.  735 

References  are  to  pagoa. 
SELF-DEFENCE— 

the  court  should  not  neutralize  self-defence  by  instructions 
not  commensurate  with   the  evidence...  »ns,uuctions 

should  not  eliminate  this  issue ^?^ 

even  though  one  arm  himself,  ami  "seViranother'to'slaV  hlnV 
and  be  the  aggressor,  yet  if  in  the  proK^ress  of  the  difficultv' 
the  killing  be  not  n  pursuance  oi'  .'ui.li  original  purpose  the 
sla.ver  snould  net  be  denied  tiie  vU^hi  of  self-defence  2Sfi 

also  defence   of   brother   and   self-defence "■■■  fm, 

notes  on;   Sir  Michael  Foster's  viev»s..  V^V  .Tc,,, 

defendant  may  show  not  only  the  general' bud  ■i-eV.utatlon"' of 

deceased  as  a  violent  and  dangerous  man,  but  al.so  his  renu- 

tation  for  particular  kinds  of  violence  and  treachery  3Su 

the  court  should  not  limit  defendant's  rUrht  of  .self-defence"  to 

an  attack  by  deceased,  when  there  was  evidence  that  another 

participated  in  the  attack ,9- 

the  court  should   not   limit   the  right  of  "sVlf-defeli'ce  'to  'the     "^ 
State's  evidence,   but  should  also  instruct  on  the  basis  of 

the  evidence  for  the  defence 495 

right  of,  must  net  be  limited  by  the  court,' n'o'r' based  on  condi- 
tions not  found  in  the  evidence ^52 

Instructions  on,  must  be  given  where  there  is  evidence' raising 

this    issue "         ^cr 

defendant  hag  the  right  to  anticipate  an  expected  assault  upoii 
him;  and  evidence  of  previous  assaults  upon  him  is  com- 
petent in  his  defence ^  -g    ^q- 

evidence  of  i>revicus  altercation  admissible .'.'..'.'.'.'.'.'  '  ig7 

not  an  issue,  where  defendant  repeatedly  shot  at 'ar. "officer 
who  was  about  to  arrest  him,  but  who  did  not. .  129 

Instructions  on V  Vci,"  'i'g'2;  165 

see  also  Lnstuuctio.n.s. 
SEXTEXCE— 

where  courts  of  record  and  justices  of  the  peace  have  con- 
current   jurisdiction    in    misdemeanors,    the    former    cannot 

impose  severer  sentences  than  the  latter iSG 

age  at  lime  cf  sentence  determines  place  of  imprisonment....'  653 
a  month  means  a  solar  month  of  30  days  and  not  a  lunar  or 

cal  riidar  month GOS 

sentence  for  assault  to  kill  cannot  stand  where  verdict  was  for 

assault  and   battery 216 

THREATS— 

a  general  prediction  a  year  before,  based  on  conditions,  that 
somebody  would  be  killed,  is  too  indefinite  to  be  a  threat. .  337 
TRESPASSER— 

his  right  to  resist  dangerous  assaults  upon  him ].'G 

see   also    II7 

nvfci  on  same,  and  that  there  is  no  trespass  against  injured 

owner,  on  leased   premises IGO 

TRIAL— 

record  that  juror  was  challenged  for  bias,  challenge  submitted 
and  sustained  by  the  court,  means  that  both  parties  con- 
sented that  the  challenge  should  be  tried  by  the  court,  with- 
out  triors    240 

error  to  allow  it  to  be  shown  that  a  joint  defendant  on  bail 

was  absent  from  the  state  at  time  of  trial 2SG 

when  the  audience  aijplnuds  the  prosecutor's  speech,  the  court 
-should  admonish  the  jurors  not  to  allow  themselves  to  be 
influenced   thereby    404 


736 


AMERICAN  CRIMINAL  REPORTS. 


References  arc  to  pages. 

TRIAL  (continued)— 

the  court  should  not  comment  on  the  weight  of  the  evidence, 
In  hoiirlng  of  the  jury t  lu 

two  aa.suults  15  nilnuies  aiuirt;  prosocutlon  shuulil  elect  which 
one  shall  be  tried Ill 

error  lo  nolle  chiirKes  figainst  part  of  di'l't'iidanld,  on  niollcu 
ol'  inoHccutor,  during  his  closing  argument,  under  sucli  dr- 
cunistunvoH  as  would  lead  to  the  conclusion,  tiiat  the  defend- 
ants  on   trial   were  guilty f,r>o 

error  to  instruct  jury  during  absence  of  defendant CIS 

niisjondr.'.  of  prosec'Utors  in  asking  defendants  and  tliclr  wit- 
nesses insinu.iting  (|uesticns  on  incompetent  ni,ilt(;rs,  dis- 
cussed  and   condemned C-n 

but  questioning  defendant  about  a  former  conviction  is  not 
reversible  error  where  that  fact  was  brought  out  by  the 
methods   of  the   defense ',]:," 

inslnuat kills  on  absence  of  defendant's  v.'itnesses  is   it.iproper  GIJu 

croKS-exauiination  of  defendant  as  to  jirlor  indei)Ciulent  nuit- 
ters    is    improper Gl'.o 

uni)0|iiilarity  of  defendant  makes  it  the  special  duty  of  the 
lii-osccutor  to  secure  him  a  fair  trial OIJO 

striking  out  prejudicial  evidence  does  not  cure  the  error  in 
its  admission,  especially  vsMien  the  jury  Is  not  toUi  to  disre- 
gard   it , GIJ 

witnesses  for  in'osecution  und(  r  claim  of  rebuttal,  should  net  be 
allowed  to  testify  as  to  matters  in  chief,  after  defense  has 
closed,  when  they  could  have  been  called  before 01', 

VARIAXCK — (Under  this  heading,  cases  reported  in  full  in  the  notes, 

are  treated  the  same  as  |)iinci|):il  cases.) 
descriplive  averment,  even  though  unnecessarily  specific,  must 

be  i)roven  as  laid (175,  tisj  csi;,  (iSit 

notes  <l"r.,  OSi,  con 

"fawn-colored    .Jersey    heifer,    about    eighteen    months    old." — 

l)roof  simply,  a  heifer — variance  fatal CSO 

Canadian  bills  not   LI.  S.  money Csi! 

mark  of  "I.,ion  passant"  not  that  of  "Lion  rampant" (litl 

a  heifer   not  a  cow (19 1 

sheei)  iind  lamb  the  same G!)L' 

"Indian,"  not  proof  of  "Wyundott  Indian";  "mulatto  slave"  not 

a  "negro  slave";  mark  on  left  ear,  not  same  as  mark  on  right 

ear;   "Smith  &  Weston"  not  "Smith  and  Wesson";   pictures 

of  partly  naked  glrla  not  pictures  of  "naked  girls";   notes.,  (ir"! 
names  of  persons  injuied,  and  of  owners,  must  be  proven  as 

laid    (i7."..  (iS2,  GS4,  GS.j,  CSC,  G9S.  710,  711,  712,  7U,  7ir> 

"James  Brewer"  not  same  as  ".John  Brewer" GSfi 

"Ed.  Hightower"  not  same  as  "Edmund  Green  Hightower"  or 

"Green    Hightower"    Tin 

"Rosa  Leo  Nelson"  not  same  as  "Rosa  Lee  Ann" 712 

"Sarah  Ann"  not  same  as  "Ann" 711 

"Lillie"  not  same  as  "Laura  Van  Buskirk" 71'> 

"Trius"  not  same  as  "Darius" 71 G 

variance  as  to  initial  middle  name  not  fatal TIT 

but  see  votes G'G 

person  de.scribed  as  a  "widow"  fatal  variance 711 

variance  as  to  name  of  bastard  child 711 

variance  immaterial  where  blemish  in  the  right  eye  of  a  horse 

was  alleged  to  be  In  the  left  eye 7f>n 

but  see   notes 690,  704 


INDEX. 


737 


tlcfcrcnces  aro  to  pagos. 
VAIIIAXCE  (continued)  — 

misspelled  words,  not  changlnR  the  meaning,  no  varlanre, 
such   as   "undertood"   for   "understood,"   and   "relcevd"    for 

"received"     -oq 

where  the  Intent  Is  the  gist  of  the  statute,  the  precise  weapon 
used  Is  immaterial,  except  as  an  Instrument  of  evidence- 
thus:   where  a  pistol  was  charged,  proof  of  a  gun  was  not 

a  variance   094 

weipon  described  as  "a  bottle"— proof,  two  glasses— variance 

fiital     093 

there  is  no  variance,  if  the  weapon  produces  the  same  kind 
of  a  wound;  nor  where  a  different  kind  of  poison  is  proved, 
If  the  effect  is  the  same— see  authorities  reviewed  In  Quedel 

V.  People,  in  notes 678 

charge  of  assault  to  rob  by  menaces,  etc.,  not  sui)ported  unless 

the   menaces   are   proven 707 

a  rail-road  car  should  be  described  by  number  or  other  pre- 
cise description;  and  where  alleged  to  be  the  i)roperty  of  a 
certain  company,  it  is  a  fatal  variance  to  prove  ownership 

In    another   company 698 

ownership  of  property  in  burglarized  building,  must  be  proved 

as    laid    682 

the  same  as  to  ownership  of  proi)Prty  in  robbery G75 

misdescription  of  ware-house  in  burglary 68.5 

verdict  of   burglary   in   daytime,  at  variance  with  charge  of 

burglary    in    the    nighttime 719 

instructions  covering  a  ground  of  aggravation  not  sot  out  in 

the  Information,  are  at  variance  with  it 718 

variance  between  verdict  and  sentence 2i6 

doctrine  of  "Once  in  .Teopardy"  applied G77 

when  and  how  a  variance  may  be  taken  advantage  of,  notes..  C77 
VKXIJE— 

conviction  should  not  stand  without  proof  of  it 618 

change    of    396 

VERDICT— 

for  assault  and  battery  will  not  support  a  sentence  for  assault 

with  intent   216 

assenting  to  forms  of  verdict 174 

WEAPONS— 

statute  prohibiting  carrying  of  generally,  void 217 

ro.Nc'KAi.Ki)  WKAi'o.Ns:     Carrying  of  may  be  prohibited 220 

"concealment"  must  be  proved  beyond  reasonable  doubt 222 

may  carry  a  revolver  from  which  cylinder  has  been  removed  224 

city  policeman  may  not  carry  outside  of  his  jurisdiction 223 

concealed    at    home 226 

|)i;ai)ly,  defined;  nature,  use  and  circumstances  should  be  con- 
sidered        182,   230 

court  should  instruct  also  as  to  physical  capacity  of  person 

using     230 

not  necessary  to  aver  weapon  as  "deadly,"  per  se,  unless  re- 
quired by  statute  to  be  "deadly" 205 

term  "deadly  weapon,"  not  limited  to  those  mentioned  in  the 

statute     228 

defined    142 

what   is  use   of 152 

unless  weapon  is  deadly,  intent  should  be  shown  by  proof 135 

"any   animate   or   Inanimate   object"   not   equivalent   to   "any 

dangerous   weapon"    Ill 

Vol.  XIII— 47 


1 


738 


AMERICAN  CRIMINAL  REPORTS. 


References  nro  to  pogcH, 

WEAPONS  (continued)  — 

iliiiiKorouH  chanuter  depends  upon  use  made  of  It;  a  pistol  not 
n  deadly  weapon  when  defendant  simply  struck  with  It  In 
Bolf-defence,  and  did  not  use  It  af*or  assailant  relinquished 

his  hold    i:,2 

WIFE  REATINO— 

English  rule   84 

WITNESSES— 

the  Slate  Is  not  required  to  Introduce  all  of  the  witnesses 
whose  names  are  indorsed  on  the  indictment 240 

reason  of  the  ancient  rule,  that  the  State  must  Introduce  all 
eve  HHtiiCNNCs,  obviated  by  chanRcs  in  our  law 240 

tircu instances  might  make  it  wrongful  for  a  prosecuting  officer 
to  decline  to  call  witnesses  favorable  to  a  defendant;  and 
in  such  cases  it  would  be  proper  for  the  court  on  its  own 
motion   to  call   them 240 

where  a  witness  remains  in  the  courtroom  through  mere  In- 
adveitence,  it  would  not  be  ground  for  reversal,  especially 
where  the  record  does  not  show  an  order  to  exclude  wit- 
nesses       2(11 

defendant  entitled  to  meet  witnesses  "face  to  face";  affidavits 
and    depositions   not   admissible ;!!)2 

while  a  witness  may  be  contradicted  on  statements  showing 
bias,  etc.,  he  may  not  be  as  to  matters  merely  collateral  and 
irrelevant    4(M 

witnesses  cross-examined  for  puri)oses  of  impeachment  should 
be  allowed  to  explain  their  statements 4(14 

witnesses  should  not  be  asked  as  to  particular  criminal  acts 
to  impeach  them,  or  render  them  infamous .'i;!:'. 

a  surveyor  is  a  competent  witness  as  to  location,  measure- 
ments, etc.,  of  place  of  homicide :...., 51 


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